oshane:bloghttp://www.oshane.com
Continuously opining, intermittently publishing.Thu, 04 Jul 2013 08:07:10 +0000en-UShourly1https://wordpress.org/?v=4.5.16Police Demand to Use Home as Tactical Outposthttp://www.oshane.com/2013/07/police-demand-to-use-home-as-tactical-outpost/
http://www.oshane.com/2013/07/police-demand-to-use-home-as-tactical-outpost/#commentsThu, 04 Jul 2013 06:01:48 +0000http://www.oshane.com/?p=715Nearly two years ago on July 10, 2011, police officers in Henderson and North Las Vegas demanded to use a house as a tactical outpost or command center for a domestic violence investigation of the residents’ neighbors. When the residents appropriately told the police to buzz off, the police battered down the door, shot the occupants with nonlethal bullets, arrested the residents, and commandeered the house. (The charges were eventually dismissed with prejudice.)

Now, the lawyers for the family have brilliantly lain in wait for two years just before the statute of limitations expires* to sue the cities under a host of claims under 42 U.S.C. § 1983 (the federal civil rights statute), notably applying the Third Amendment—the one that prohibits the forcible quartering of soldiers during peacetime—as well as the Fourth Amendment (no unreasonable searches and seizures). Read the complaint here. It is dated July 1, 2013.

Assuming the facts in the complaint as pleaded are true, the plaintiffs deserve blood but will get only money. If the plaintiffs are stalwart enough not to settle (and the cities should absolutely try their hardest to settle), may the jury award them many millions of dollars—as punition for this sort of outlandish, outrageous, malevolent behavior. $100 million sounds about right.

If the government does not settle (assuming the plaintiffs are even willing), and it has the temerity to appeal any judgment, this will be a chance for the appellate attorneys to argue for the incorporation of the Third Amendment against the states—at least in the states inside the 9th Circuit.

Not all of the Bill of Rights apply against the states. (Until the early 20th century, none of the first ten amendments to the U.S. Constitution applied to state governments. See Gitlow v. New York, 268 U.S. 652 (1925), which applied some of the limitations on government in the First Amendment to the states using language in the Fourteenth Amendment.) Most of the Bill of Rights has been incorporated to/against the states. The Third Amendment has not, except in the 2d Circuit (Connecticut, New York, Vermont), because of that Circuit’s holding in Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).

Admittedly, the Third Amendment, which reads,

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law,

contemplates soldiers not police officers, per se. There are also comparative factual issues in the Englbom case that make Englbom harder to serve as an analogy, particularly that the governmental agents were National Guardsmen under the control of the Governor of New York. But without having done much historical research in this area, I’m sure I could come up with a novel but convincing argument to conflate the two concepts (soliders and police).

In any case, the Mitchell family deserves to heap opprobrium upon the cities of Henderson and North Las Vegas and I hope they pay the family handsomely for their actions. Every man’s home should be safe from random governmental force.

* There is no federal statute of limitations for § 1983 claims, so they track the personal injury statutes in the states underlying the federal jurisdictions where the federal courts sit. Nevada’s relevant statute appears to limit these actions to 2 years from the incident.

]]>http://www.oshane.com/2013/07/police-demand-to-use-home-as-tactical-outpost/feed/1The Defendant’s Right to Jury Trial in Jones Act Claimshttp://www.oshane.com/2013/01/setonhalljonesactjurytrialarticle/
http://www.oshane.com/2013/01/setonhalljonesactjurytrialarticle/#commentsThu, 31 Jan 2013 21:00:53 +0000http://www.oshane.com/?p=703The Seton Hall Circuit Review at Seton Hall University School of Law graciously published my article, entitled The Defendant’s Right to Jury Trial in Jones Act Claims: Washington State’s Endicott Opinion Invites Much Needed Supreme Court Review near the end of December.

Plaintiffs in Jones Act claims have the ability to elect to have the claims heard in federal court or in state court. When a federal court hears the claim, the plaintiffs may elect to have it heard in admiralty (with no jury trial) or under another form of jurisdiction where either party can elect to have a jury determine the facts of the case. This is because the Seventh Amendment demands that the right to trial by jury be preserved except in a few special circumstances. The Supreme Court long ago ruled that admiralty trials were one of those exceptions.

At issue is that the plaintiff can elect to have the claim heard in admiralty or not in federal court, and because plaintiffs can amend their complaints (often as a matter of right), a plaintiff may first elect a form of trial that requires a jury and then amend the complaint to switch it back to admiralty. When this happens, some courts say the switching back is okay because even though the jury trial right should have attached in the first form of jurisdiction, because the plaintiff had the power to elect in the first place, there’s no harm done. Other courts say that so long as you keep the claim in admiralty, there is no jury trial right, but once you elect to have the case heard in another jurisdictional form, the jury trial right attaches irrevocably.

If you want to read the predicate opinion by the Washington Supreme Court, Endicott v. Icicle Seafoods, Inc., 224 P.3d 761 (2010), it is here.

]]>http://www.oshane.com/2013/01/setonhalljonesactjurytrialarticle/feed/5Fastidiousness and Conscientiousnesshttp://www.oshane.com/2012/11/fastidiousness-and-conscientiousness/
http://www.oshane.com/2012/11/fastidiousness-and-conscientiousness/#respondMon, 26 Nov 2012 10:35:14 +0000http://www.oshane.com/?p=700Fastidiousness and the conscience are harsh mistresses, but warm ambassadresses.
]]>http://www.oshane.com/2012/11/fastidiousness-and-conscientiousness/feed/0The True Obstacle to the Autonomy of Seasteadshttp://www.oshane.com/2012/09/true-obstacle-autonomy-seasteads/
http://www.oshane.com/2012/09/true-obstacle-autonomy-seasteads/#commentsTue, 11 Sep 2012 06:31:29 +0000http://www.oshane.com/?p=681Here is a revamp of my article, The True Obstacle to the Autonomy of Seasteads: American Law Enforcement Jurisdiction over Homesteads on the High Seas, which the University of San Francisco Maritime Law Journalφ recently and graciously published (July 2012).

The article analyzes the intersection of American criminal law enforcement in admiralty with the proposed, anticipated, and future uses of seasteads to create politically autonomous communities on the ocean. This part of my conclusion summarizes the paper:

The conundrum of seasteading is that leaving the authority of nationstates behind may be a harder task than sailing headlong into the throes of the sea. The irony is that the nation proclaimed as the “land of the free” could shackle these twenty-first century frontiersmen in their quest for greater autonomy with broad pre-existing assertive notions of jurisdiction. American jurisdiction over the high seas is plenary. Not only does it contravene parts of international law, courts do not necessarily relinquish it even when American officers arrest a vessel or a person on the high seas illegally.

On the other hand, the United States is least likely to interfere with a vessel that does not engage in the activities it is trying to prevent. So long as a seastead does not attempt to illegally take the resources in or violate the health regulations of the United States’ EEZ, and so long as the seastead enters the contiguous zone while fully disclosing its cargo and manifest, it should incur a minimum of ongoing interference from the United States.

]]>http://www.oshane.com/2012/05/fast-reading/feed/0Graduation againhttp://www.oshane.com/2012/05/llm-graduatio/
http://www.oshane.com/2012/05/llm-graduatio/#respondTue, 15 May 2012 18:59:43 +0000http://www.oshane.com/?p=666This Saturday, I graduate with an LL.M. (Master of Laws) in Admiralty from Tulane University Law School. I have spent a year focusing on maritime commerce and admiralty law and I have a much more acute sense about how to represent seafaring clients and proctor their claims.

I plan to take on maritime clientele as a substantial part of my practice. That said, even if I were never to practice in admiralty, it would have been worthwhile. I agree with the following passage:

No other course in law school implicates so many substantive areas of the law: contracts, torts, civil procedure, criminal law, legal history, commercial law, environmental law, both public and private international law, administrative law and constitutional law. Even if a student never sees a maritime case after graduation, the course on Admiralty Law will provide a capstone to her legal education, demonstrating how the various pieces of the law fit together as a harmonious whole. No other course in the law school curriculum is [sic] casts so broad a net and is capable of providing a picture of the richness of the law as it is confronted by lawyers and judges in the front lines of practice.

]]>http://www.oshane.com/2012/05/llm-graduatio/feed/0Fox & Freedom Watch Reduxhttp://www.oshane.com/2012/02/fox-freedom-watch-redux/
http://www.oshane.com/2012/02/fox-freedom-watch-redux/#respondMon, 13 Feb 2012 18:18:10 +0000http://www.oshane.com/?p=655It turns out that my suppositions about why Fox News canceled Freedom Watch were wrong. Judge Napolitano made this statement on Facebook today to his followers (it’s the second or third in a string of increasingly frustrated missives to his ardent viewership):

Dear Friends–

Many of you are not happy with the cancellation of FreedomWatch, and you have sent emails to my Fox colleagues expressing that unhappiness. In television, shows are cancelled all the time. Two of my former shows have been cancelled, and after each cancellation, Fox has rewarded me with more and better work. This cancellation–along with others that accompanied it–was the result of a business judgment here, and is completely unrelated to the FreedomWatch message. It would make a world of a difference for all of us, if you would KINDLY STOP SENDING EMAILS TO FOX.

I am well. Your values are strong. I will continue to articulate those values here at Fox. But the emails many of you are sending are unfairly interfering with my work and that of my colleagues here. The emails even violate our values because they interfere with the use of private property. I have accepted the cancellation decision with good cheer and a sense of gearing up for the future. You should as well.

As a favor to me, and as I have asked this past weekend, PLEASE STOP SENDING EMAILS TO MY COLLEAGUES AT FOX ABOUT THE CANCELLATION OF FreedomWatch; and please stop NOW.

All the best, apn.

Well it turns out he continues to have a platform for his work on Fox News. I do bet he wishes he could issue an injunction right about now!

]]>http://www.oshane.com/2012/02/fox-freedom-watch-redux/feed/0Fox News Cancels Judge Napolitano’s Freedom Watchhttp://www.oshane.com/2012/02/bye-bye-freedom-watch/
http://www.oshane.com/2012/02/bye-bye-freedom-watch/#respondFri, 10 Feb 2012 01:09:20 +0000http://www.oshane.com/?p=648Fox News just announced a new lineup that does not include the eminently popular Freedom Watch hosted by the liberty-loving Andrew Napolitano (former judge of the New Jersey Superior Court).

If I were as ideologically motivated as Fox News is, I would have canceled Judge Napolitano too. It was always far more likely that his clear explanations of what it really means to live free would draw “traditional” Fox News viewers to the cause of liberty than it was likely the rest of Fox News would induce liberty-minded people to become neoconservatives (read: national socialists). Thus, keeping him around was tantamount to losing the ideological war with your own base. Also, I bet Rupert Murdoch doesn’t like the fact that one of his most popular hosts fundamentally disagreed with him on a number of things, including, namely, that the internet should be free from intrusive government control, where government acts as a puppet for the sake of large business concerns.

Anyway, I always wondered how long Judge Napolitano would last on Fox News given that he actually believes in real freedom, no war, low/no taxes and a desire to restore true narrow limits on government. His ratings are high, so the cancellation must be for some other reason, and I strongly venture they are ideological.

]]>http://www.oshane.com/2012/02/bye-bye-freedom-watch/feed/0Federal Admissionshttp://www.oshane.com/2012/01/federal-admissions/
http://www.oshane.com/2012/01/federal-admissions/#respondWed, 25 Jan 2012 08:24:21 +0000http://www.oshane.com/?p=630As of yesterday, I have been admitted to practice in all federal courts in California—the United States District Courts for the Central, Eastern, Northern, and Southern Districts, and the U.S. Court of Appeals for the Ninth Circuit.

* “File” also includes answering cases filed by another lawyer or pro se party.

]]>http://www.oshane.com/2012/01/federal-admissions/feed/0Admitted to Californiahttp://www.oshane.com/2011/12/admitted-to-california/
http://www.oshane.com/2011/12/admitted-to-california/#respondThu, 15 Dec 2011 00:00:41 +0000http://www.oshane.com/?p=636As of today, I am officially a member of the California State Bar, which means I can practice in any California state court.
]]>http://www.oshane.com/2011/12/admitted-to-california/feed/0The name above appears…http://www.oshane.com/2011/11/the-name-above-appears/
http://www.oshane.com/2011/11/the-name-above-appears/#commentsSat, 19 Nov 2011 07:22:26 +0000http://www.oshane.com/wp/?p=615What a relief!
]]>http://www.oshane.com/2011/11/the-name-above-appears/feed/1DOJ Wants CFAA Criminal Penalties to apply to TOS violationshttp://www.oshane.com/2011/11/doj-cfaa-tos/
http://www.oshane.com/2011/11/doj-cfaa-tos/#respondWed, 16 Nov 2011 07:09:14 +0000http://www.oshane.com/wp/?p=609Just when you think it couldn’t get worse…

The Department of Justice is asking Congress to amend the Computer Fraud and Abuse Act to criminalize violations of websites’ terms of service. Note that website owners and online service providers intentionally write their TOS with maximum breadth to ensure that they have the power to contractually limit or end your license to use their services so that they have a contractual defense against potential civil suits by users who are upset that their access was cut off. Terms of Service are not just about preventing nefarious behavior. In fact, terms of service routinely make it a breach of the license agreement to do a host of innocent things, just because those things are annoying to the website provider.

Ostensibly, DOJ wants Congress to curb one mechanism of identity theftâ€”giving fake names to website accounts. But think about what sorts of behavior this would criminalize. Several articles have noted that Prof. Orin Kerr, who wrote an op-ed about this issue two months ago, testified to Congress that simple misstatements in light of a TOS requirement to state accurate information would make him a criminal, since his Facebook page lists “Washington, D.C.” as his residence when he actually lives in Arlington, Virginia.

Other articles have noted that listed a weight that is lighter than your true weight on Match.com violates its TOS, and thus would be criminal. When I go to video game websites requesting my birth date in order to show me a rated-M game, is my common practice of putting in my correct birth year but leaving the date as January 1 (because clicking on three drop down boxes instead of one is annoying) criminal? Do I violate the TOS and subject myself to prosecution for suing the website company instead of going to arbitration, or for filing suit in a forum other than the one the TOS requires? What if someone posts an image in violation of copyright, which a TOS prohibits? He would be guilty of a federal crime. What if I give my password away to a friend or loved one so he or she can access my account for some perfectly innocent reasonâ€”but the sharing of passwords is a violation of a TOS? I would be subjected to criminal prosecution.

Essentially, in the name of “fighting crime,” the Obama Administration is looking to make any simple contractual violation that occurs online a matter of national prosecution. And of course, the DOJ is claiming that it won’t overreach because it will use its power and resources for the cases that matter. But this is no comfort. It is basically admitting that many more people and their actions will fall under the reach of the CFAA’s criminal provisions, but that we should trust prosecutors not to prosecute.

This is an Orwellian melange of criminal law a civil problem between private parties. It would give the DOJ a virtually unlimited power to prosecute almost anyone using the internetâ€”because it’s highly unlikely that any of us have never violated the terms of service of a website, even if just once by accident.

]]>http://www.oshane.com/2011/11/doj-cfaa-tos/feed/0Brady v. Maryland revisitedhttp://www.oshane.com/2011/11/brady-revisited/
http://www.oshane.com/2011/11/brady-revisited/#commentsTue, 15 Nov 2011 06:21:31 +0000http://www.oshane.com/wp/?p=602The New York Times opines in its Sunday, November 13, 2011 editorial that the two-pronged inquiry set forth by Brady v. Maryland, 373 U.S. 83 (1963), should be collapsed into one question. Under Brady, the Supreme Court required prosecutors to turn over evidence to defendants if the evidence is favorable to the defendant and if it is likely to affect the outcome of the case. Id. at 87. NYT’s editors suggest that this second ‘materiality’ (likely to affect) inquiry should be abrogated and that all favorable evidence, regardless whether the prosecutor thinks it might be immaterial, should be handed over to defendants. I agree.

The prosecutor does not have the proper incentives to fairly answer the materiality question on the heels of discovering evidence favorable to the defendant. This is because to do so would be to give the defendant evidence (read: ammunition) that could exculpate himself. When a prosecutor honestly believes in his heart that the defendant is guilty, it hurts him to think that the evidence might show otherwise, and it is easy to see how he would be tempted to hold on to evidence. And when a prosecutor is corrupt enough to convict no matter the evidence, he almost certainly wants to keep exculpatory evidence hidden. Assuming the vast preponderance of prosecutors are ethical, one would never not disclose defendant-favorable evidence when it is obviously material. But what about when the materiality of the evidence is less clear, even if the prosecutor is ethical? And what does it mean, really, for evidence to be likely to affect the outcome of the case?

It all depends on how much evidence there is, as well as how well the defendant’s attorney will use the evidence to his client’s advantage. Effectively, the prosecutor could decide that his opponent (the defendant’s attorney) is a bad lawyer and that the evidence is unlikely to affect the outcome of the case precisely not because it doesn’t speak to the defendant’s lack of guilt, but precisely because the defender is an idiot. Or, the evidence could be material if cast in a certain light, but easily brushed aside if cast in another light. When the call is a close one, what incentive does the prosecutor have to boldly state the evidence is likely to affect the outcome of the case, when the likelihood can’t even be determinedâ€”especially when doing so might hurt his case if it turns out to be material when he has plausible deniability that the evidence will be found material? Why does prosecutorial discretion include the power to decide when evidence is likely to affect the outcome of the case in favor of the defendant? Isn’t that really a jury’s job?

The Editors of the NYT make a great point. Such discretion should not exist because the incentives motivating the discretion do not comport with the true role of a prosecutorâ€”to find the truth at the expense of his conviction rate.

But I would take it further. What profit is it to society, where the criminal law is built as a deterrent to outlandish behavior and as a retributive way of punishing evil behavior (at least according to its origins in the common law), to withhold any evidence from a defendant before or after trial? One might argue that because discovery rules allow a defendant to withhold exculpatory evidence from a prosecutor so long as he doesn’t request discovery of the prosecutor’s evidence, that the prosecutor should be able to withhold unfavorable evidence from him. But that begs the question. The discovery rules exist to implement a matter of policy, so they cannot be a reason for the policy.

And furthermore, why is that the policy? Who really cares if the rules are purely fair from a procedural standpoint when prosecutors have anywhere between a 65 and 97% conviction rate? Should we, as a society, care that only defendants who are guilty are put in jail? John Adams said,

It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, â€œwhether I do good or whether I do evil is immaterial, for innocence itself is no protection,â€ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.

Even if prosecutors’ convictions numbers go down, we could be more certain those convictions were fair if we knew that prosecutors were turning over every scintilla of evidence to defendants, even if defendants weren’t required to do the same. It would give innocent defendants a better (fighting) chance and would not truly harm the ability to punish guilty defendants.

Critics will balk for fear that a defendant will use the evidence that a prosecutor could otherwise keep secret, e.g., evidence unfavorable to the defendant, to make up a story about his innocence. But, in order to come to trial, prosecutors already release evidence to a defendant to (typically) get him to negotiate a plea (one cannot negotiate without showing some cardsâ€”even if they are only strong cards). Prosecutors are already used to showing their hands before trial, so why bother with the inquiry in the first place?

Why not collapse discovery in criminal cases to require prosecutors to turn over all evidence? The Supreme Court should overrule Brady in its entirety and hold that prosecutors hand over all evidence to a defendant. if the purpose of the prosecutor is to uphold justice rather than win, it would be more consistent to require prosecutors post-indictment (or information) to hand over all evidence to the defendant before trial, irrespective of its favorability or materiality. It would give the defendant the fairest chance to mount a proper defense, and it would serve to make trials and plea bargaining fairer.

That will not happen in Smith v. Cain, despite that the Supreme Court was imploring the counsel for New Orleans to confess error and give up its contorted arguments that New Orleans was in the right for not handing over evidence it is obvious the city should have. The Supreme Court will not go that far since the propriety of Brady is not at issue. But the Court should consider expanding the responsibility of the prosecutor to turn over evidence to the defendant. Or Congress (and the States) should.

]]>http://www.oshane.com/2011/11/brady-revisited/feed/1OS X Lion Show Desktophttp://www.oshane.com/2011/11/os-x-lion-show-desktop/
http://www.oshane.com/2011/11/os-x-lion-show-desktop/#respondSat, 12 Nov 2011 20:42:49 +0000http://www.oshane.com/wp/?p=595Here I am at the New Orleans Apple Store reminding myself why I downgraded from OS X Lion (10.7.1) to Snow Leopard (10.6.8). The upgrade to Lion changed the way that gestures work on trackpads. The worst change is that there is no longer an effective way to show the desktop.

In Snow Leopard, one could simply use four fingers and swipe upward to show the desktop. In Lion, the swipe requires a pinch and outward movement with three fingers and a thumb. Besides the fact that the swipe is hard to do, it doesn’t seem to work correctly every time. I end up trying to do the gesture over and over again until my hand hurts.

This makes for a bad notebook user experience, and I do not plan to upgrade to Lion until there is an effective workaround (F11â€”the key that will show desktop still works, but again, it’s not as convenient as using the 4-finger Snow Leopard gesture). This is crippling for notebook workflow, since the screen space is small enough that clearing the screen to see the desktop is almost a requirement for such workflow. It may not be as necessary on iMacs or Mac Pros, or if a notebook is hooked up to a larger screen, since one can more easily show part of the desktop (as a temporary space for playing Tower of Hanoi with files).

I think there may be some third-party software to handle the problem, but I don’t want to have to install a third-party application to make the Mac desktop UI worth using on a Mac where I have a trackpad instead of a mouse. The new gesture is positively terrible. I implore Apple to allow for a setting for Lion users to use all of Snow Leopard’s gestures.

]]>http://www.oshane.com/2011/11/os-x-lion-show-desktop/feed/0Did we make the right decision?http://www.oshane.com/2011/11/right-decision/
http://www.oshane.com/2011/11/right-decision/#commentsSat, 12 Nov 2011 06:50:42 +0000http://www.oshane.com/wp/?p=575I decided to start watching Terra Nova today on hulu+ and saw the first episode this evening.

Spoiler: The show first introduces a couple with three children living in a dystopian future 200 years from now. There is a cutscene that shows the Earth from the moon (cf. Earthrise), but instead of a picture of the cerulean verdant world we live on now, we see a sandy desert wasteland from space (cf. Dune). Pollution, over-population, and habitat destruction&#8212the liberal trifecta of red herrings that supposedly will lead to our doom (but a workable plot device)&#8212have made the Earth almost uninhabitable. People generally have to wear breathing masks and society is governed by a security state.

It becomes apparent that having more than two children is illegal because of Malthusian policies put into place by the fascist government. Upon a warrantless search, the police discover the third child that the couple tries to hide. The father, fearing that she will be taken away from them, attacks the police. They subdue him, and the criminal enforcement system sends him to a long maximum security prison sentence. Apparently hitting a cop and having a third child are maximum offenses. It is poetically notable, also, that there is no depiction of a trial.

Fast forward some years, and his wife comes to visit him in prison. We learn that society has found a way to overcome the problems plaguing Earth, by sending pilgrims through a one-way time fracture 85 million years into Earth’s prehistoric past&#8212a place of environmental perfection and hope (sunshine and breathable air). The wife is a well-educated well-trained highly sought doctor. She informs her husband that she has been recruited to this prehistoric colony, Terra Nova, and that their first two children are allowed to go but that she can’t take the third child, since that would be “rewarding illegal behavior.” Obviously her husband is prohibited from going. She has already, however, hatched a plan to abscond with her husband and smuggle their daughter so they can live in the past as a family. Through a bit of hidden planning and a small portable plasma cutter, the father/husband escapes, is almost outed near the time-portal to the past, and as his family is going through the portal, he makes a break for the time gate and throws himself through, ensuring his permanent freedom and his family’s reunification.

They have no way of returning to the dystopia they have always known. And the government has no way of retrieving “stowaways.” Certainly they will face new challenges adjusting to their environment, dinosaurs, life in a small colony that survives with advanced technology, and a new micro-culture. But, the day they arrive into this new world, the wife asks her husband whether they have “made the right decision?”

I was floored. She successfully reunited her family, ensured that the terrible government that was oppressing their ability to freely choose how to create their family (three children) could no longer oppress them, and rescued her husband from a maximum security prison and a lifelong status as a convicted felon for actions that should hardly be considered crimes. It is harder to know what the worst part of 22d century Earth was&#8212the environmental decline or the totalitarian centrally planned security state (I mean, even the people allowed to go through the time fracture were chosen by the government, so it’s evident the government was in maximum control). The former doomed civilization. The latter made the last days of civilization unbearable.

Of course they made the right decision! Clearly this decision is the plot device underpinning the TV show, and the tension caused by the decision to travel in time from the future to the past, and further tensions that will arise over the course of their lives are what will make the story interesting or not. Thus, it is possible the writers were intentionally explaining the crux of the story. But still, doing so directly made the tension too obvious, taking way sophistication the show could have displayed. And, using the vapid question, “Did we make the right decision?” made the show almost incredible.

Truly, they are not quite free, because they arrived into a micro-culture that is run as a top-down command-central tribe, but at least they could leave the gates if they wanted to. They remain in Terra Nova voluntarily, because that society offers them better benefits than slumming it with the dinosaurs, but at least the choice is meaningful, precisely because they can walk outside the gates and never return if they decide that is a better choice. Meanwhile, the family gets to be together. The children grow up with a father. And they are free from the clutches of the security state of the year 2149.

The question, “Did we make the right decision?” may have been more meaningful after a host of episodes in which they suffer and repel constant attacks, deal with disease, plague, and misfortune (I haven’t watched beyond episode 2, so I do not yet know what befalls them). At least at that point, one could understand the question as much as one could identify with the murmuring of the Israelites to return to the Egypt they had known out of fear for the wilds of the desert. When you are beset by the vagaries and tragedies of the wilderness, the temptation to trade its liberty for security becomes a more palpable tension.

But to ask the question so soon after a heroic, exhilarating exodus was not just bad writing, it inexcusably glossed over how terrible the future civilization was. Maybe that’s because we’ve all gotten so used to an increasing number of controls that the show’s writers didn’t even think twice about the absurdity of the comparison.

]]>http://www.oshane.com/2011/11/right-decision/feed/2Barbri Californiahttp://www.oshane.com/2011/11/barbri-california/
http://www.oshane.com/2011/11/barbri-california/#commentsThu, 10 Nov 2011 19:25:29 +0000http://www.oshane.com/wp/?p=559I’ve been wanting to do a post-mortem on the bar review course I took for California this summer with Barbri.

Sufficiency of the Materials
Overall, the course was helpful. I took Barbri’s mobile course, which allowed me to watch videos and study from home. Because California is a large national market of bar applicants looking for assistance in preparation for the exam, most of the substantive lectures were very good. The multistate bar examination (MBE) preparatory materials (the MBE is the 200-question multiple choice test that 48 jurisdictions use on the Wednesday of bar exam week) were helpful, because they escalated in difficulty and idiosyncrasy over time. I found Richard Sakai’s pragmatic lectures about how to take the essays generally helpful and Peter Jan Honigsberg’s lectures about the California Performance Test also to be very encouraging and helpful.

That said, the price of the program is too high for the material that is provided. Barbri certainly provides a significant&#151almost overwhelming&#151amount of material to the applicant. To its credit, Barbri makes no assumptions about what the average test taker needs and provides the full gamut of preparatory material so that each student has all the material any applicant might need to study. While I rarely looked at the complete subject matter outlines (instead using the lecture notes or the mini-review), the full outlines allow people who are completely unfamiliar with a subject to study them and feel satisfied they won’t need to do research elsewhere to understand the subject. There were more than enough past essays with model answers to practice and more than enough past performance tests with their own model answers to analyze. The sets of MBE questions were comprehensive.

Value
The irony is that because California is a national market for bar review (i.e., many applicants from all over the country take the test twice a year), the costs Barbri has in producing the materials and paying for the lectures must be subject to economies of scale, particularly when the legal material doesn’t change much from year to year. On one hand, I wonder if the inherent value* of the material is much less than the $4000 price tag of the program. To some extent, the cost of materials plus reasonably moderate double-digit profit** cannot possibly equal $4000. Some of the extra margin is driven by demand for Barbri’s goodwill. That it has been in business for thirty years and that lawyers (or would-be lawyers) are more predisposed to risk avoidance means that law students are routinely more likely to go with the dominant service provider in the market (the apparent tautology that more consumers choose the dominant vendor notwithstanding).

Moreover&#151and I think it was Sakai or Honigsberg that implied as much in one of their lectures&#151California graders have come to expect that essays and performance tests have the formats that Barbri recommends applicants use, simply because (a) so many Barbri students establish a modal “average” for what a 60- or 65-mean scored essay should look like; and (b) many graders themselves used Barbri to prepare for the California Bar Exam when they took it. Thus, Barbri has established a quasi-virtuous cycle with the California bar exam graders and its own students. Students take Barbri because it can claim a higher-than-average pass rate for the California Bar Exam. Some of that incremental difference is likely driven by the fact that graders subconsciously expect essays on the whole to look like Barbri recommends, potentially leading to more satisfactory scores for Barbri students.

Thus, the profit margins that California Barbri students pay are attributable both to its historical presence (goodwill) in the market and a virtuous cycle.

I wonder&#151at least for self-motivated home studiers&#151whether it would be less costly and equally as effective to get hold of written California Barbri essay materials in the secondary market (thanks to the First Sale Doctrine***, eBay, and Amazon) and simply practice writing essays that look similar to Barbri essays. On the other hand, if one is simply just perusing the Barbri materials without paying for the service, it is arguably more worthwhile simply to look at the selected answers California releases with past exams for a more direct understanding of what graders are looking for.

Undoubtedly, part of the value Barbri provides is in the feedback loop it provides for its students. Barbri, because of its size and customer base, can scale MBE practice question scores relative to other Barbri students, which provides, assuming its MBE questions on average represent the MBE questions created by the National Conference of Bar Examiners, an effective sample size for low-error rate comparison between other California test takers and a good guess at what a student’s MBE score will look like.

The Other Part of the Feedback Loop:Essay Grading
Barbri also grades its students’ essays. This is the most value-lacking part of the course. I’ve heard from Barbri students in other jurisdictions that the essay grading in those places is helpful and a fairly accurate representation of the grading that will be done by actual bar examiners.

Not so in California. Barbri graders routinely grade practice essays with an élan for doom. The scores students receive are typically very low, particularly at the beginning of the course, and sometimes at the end. No one really knows why but a consensus is that that Barbri is attempting to bootcamp its students into realizing that the California graders will not treat graciously a poorly written essay. On one hand, that could be commendable tough love. For me, it was nerve-racking and unhelpful. At first, when I received an excessively low grade from Barbri, I crusaded to shore my bar exam essay writing skills up. And then when more low scores were returned to me, I became discouraged. It wasn’t until I read about students literally copying model answers word for word, submitting them as experiments, and still receiving failing grades, that I realized that Barbri was intentionally deflating scores to impel its students to work harder.

At one point, I received a 45 on an essay. I had made some mistakes, but nothing seemingly major. When I compared my essay to the grading rubric, I realized the grading system was a farce. A Barbri 45 indicates that the essay had not identified one major issue. In fact, in my essay, I had identified all but one minor issue. The grading was self-referentially incoherent as compared to the standards.

I do not doubt that for some students, the Stick can be a very motivating incentive to try harder and do better as opposed to the Carrot. For me&#151as I am already a self-motivated, self-starting student&#151it was simply discouraging. All I wanted was honest feedback. If an essay truly deserved a 45, then I wanted to hear it. At one point, I wrote an essay that I thought was akin to a 75, and I think I received a 65. At that point, my disagreement with Barbri would have been debatable, if not pointless. 65 is a passing grade for an essay on the California Bar Exam, and if in real life the essay was actually a 75, then telling me I received a 65 might have been marginally helpful to keep me from complacency without harming my own developing self-heuristic for what way of writing would help me pass a real essay question.

But when Barbri’s eagerness to keep its students from prosaic complacency leads them to fail practice essays by a wide margin when the essay may have been borderline or even a fair pass, Barbri loses its effectiveness as a preparatory tool. This also doesn’t comport with Barbri’s goodnatured cheerleading and its continual reminders that we should prepare enough, but just enough, to pass. It was difficult for me to simply aim for a barely passing grade but, my own fastidiousness for excellence aside, the fact that Barbri was proclaiming we should do “just enough” as contrasted to its graders failing essays that were objectively just good enough to pass, reduced the utility, consistency, and clarity of the process overall.

Conclusion
We find out in eight days whether those of us who took the July 2011 California Bar Examination passed. I wanted to write my thoughts about the Barbri process before I found out, so that my opinion would not be colored by whether I passed the exam. That said, if I am honest with myself, good news next Friday will probably wash away the bad aftertaste in my mouth left by Barbri’s wonky practice essay grading system.

Overall, I found the program effective&#151maybe not perfectly tuned to the California Bar Exam like some of the smaller boutique tutoring programs in California may be&#151but sufficient. I still question whether the price tag is worth it. I certainly think $2000 would be an outstanding value. At $4000, students enter the realm of prices for private tutoring ($5000+), and I wonder if paying another $1000 would have made for a better, more productive, or more effective experience overall. Barbri should lower its prices, but it still seemed to provide a relatively good, though not perfect, value.

Footnotes
* Whatever this means. Value is always best calculated by what a willing buyer pays a willing seller. Thus, I don’t believe the $4000 price comprises just the value of the books and lectures, but also includes a host of intangibles. See supra.

** I do not begrudge high profits and do not really believe in the notion of “reasonable” profits as some sort of moral limiting factor on profit&#151that doesn’t mean I want (as a self-interested actor) to pay more than some arbitrarily low percentage of profit, even though I may still choose to do so anyway. Obviously there are comparative reverse inequalities of value at work. Such is the nature of free-market demand.

*** No doubt Barbri and zealous IP attorneys would argue the First Sale Doctrine does not apply to a set of “leased” books, but the designation of the books as under a lease is arguable, especially given the fact that there is an inherent liquidated damages provision in the Barbri agreement in case one does not return the books, stipulating he loses his book deposit. This, among other factors, makes the part of the transaction having to do with the written books look like a sale.

Full disclosure: I returned my California Barbri materials to Barbri per the face of my agreement with Barbri and received the deposit back.

]]>http://www.oshane.com/2011/11/barbri-california/feed/5Graduationhttp://www.oshane.com/2011/04/graduation/
http://www.oshane.com/2011/04/graduation/#commentsSun, 17 Apr 2011 08:47:23 +0000http://www.oshane.com/wp/?p=521The University of Wyoming College of Lawannounces the candidacy ofO. Shane Ballounfor the degree ofJuris Doctorto be conferred with honors atThe Commencement of the Class of 2011on the fourteenth of May, at ten o’clock in the morning,in the Fine Arts Concert Hall, atLaramie, Wyoming.

For years (and I am not yet a lawyer), I have used Gill Sans and Bembo Monotype (Ã la Edward Tufte) for superb, classic readability. Since entering law school, I have had greater opportunity to interact with text-heavy documents and have branched out into incorporating other beautiful and compelling fonts.

Typography is, of course, not entirely about font choice. It is about spacing, formatting, and an overall intuition or thoughtfulness about how text layout conveys information. Typography plays a huge role in the ability of a reader to continue reading the document by decreasing or increasing eye strain over time. Typography is also a substantial factor in the speed with which a person can read a document: the features of glyphs, their interrelationships, and the spacing around them contribute to how fast your brain can apprehend the text and its meaning.

And typography conveys emotion. For instance:

Which agency would you rather hear from?

In my opinion, lawyers resist using anything but Times New Roman, likely because courts themselves, which are certainly not the paragons of cutting edge technology, use Times New Roman by default. Judges don’t know better, and more importantly, their law clerks don’t know better. Lawyers, typically risk-averse, do not want to be seem too avant-garde with respect to pleadings, because they fear having the pleadings struck (rejected) for violation of rules. So they file unreadable documents in Times New Roman.

Certainly, because the Supreme Court of the United States commands parties to use the Century Family of fonts, petitioners and respondents should do so (unless they are proceeding in forma pauperis pursuant to S. Ct. R. 39). And if your local court requires a certain family of fonts, obey.

But most courts merely specify minimum sizes. Some require serif fonts for the text (a good rule of thumb, unless you’re Apple and can’t resist using a well-kerned sans serif). Courts often specify Times New Roman as an example, if only because the rule drafters lacked creativity, not because the Courts really really want to read Times New Roman. Courts want to read pleadings that are easy to read.

Good typography will not make an argument more cogent, but it may make the arguments in the pleading feel that way. Bad typography creates substantial emotional obstacles, because it strains the mind. Good typography helps the brain read faster because it gets out of the way of the message. Good typography prevents your reader from being burdened and helps him to feel edified.

Matthew Butterick has been decrying poor legal typography for some time, encouraging the profession to become more readable—more beautiful. To me, he has a perfect job: part lawyer, part typographical consultant, and I hope his book, which should complement his very useful website, is richly successful.

]]>http://www.oshane.com/2011/04/typography-for-lawyers/feed/2A dream about Google and the Wyoming Law Reviewhttp://www.oshane.com/2011/03/a-dream-about-google-and-the-wyoming-law-review/
http://www.oshane.com/2011/03/a-dream-about-google-and-the-wyoming-law-review/#commentsMon, 21 Mar 2011 11:05:09 +0000http://www.oshane.com/wp/?p=418Several nights ago, I dreamed the Wyoming Law Review office was in the Googleplex. Since Google loves to constantly relocate various departments, the law review office had been moved while I was on vacation.

I needed to get into the office, because I was giving a presentation about law review on a flash drive to people who already knew what I was going to present, but I couldn’t find the office. I was very concerned about not having the presentation in hand while already being late to the meeting. Meanwhile, my audience included very stuffy old-world businesspeople in suits who were, despite the fact the meeting was pointless for them, very frustrated I wasn’t there yet.

Meanwhile, the office had been moved to a grandiose 5-story vaulted building with glass skylights and glass walls and a magnificent glass catwalk hanging above an indescribably cavernous subterranean groundwater aquifer. The aquifer was so large that the tallest skyscrapers from the New York skyline were half submerged in the virtual ocean of water. A large ape was hanging on one of the skyscrapers.

Not only was I late to the presentation, I had to walk along the glass catwalk while listening to the ape, which was disconcerting.

Several things strike me about this dream:

It is completely realistic that any office I had at Google would have been moved while I was out of office. This happened to me several times.

Why was I using a flash drive to store a presentation at Google? Part of me thinks it’s because a flash drive is the most state-of-the-art storage technology Wyoming has. =/

Why was I dreaming about a meeting that was a complete waste of time for everyone involved?

I’m also amused that there were people in suits getting huffy at Google. Completely unrealistic. Not the huffy part. The suits part.

I have no idea why King Kong anonymously shows up in my dream.

Underground aquifers must relate to the recent lectures we’ve had in Water Law about groundwater.

Although the Wyoming Firearms Freedom Act conflicts with existing federal law, the Act is a constitutionally valid exercise of state power. The Act is a manifestation of the doctrines of interposition and nullification espoused by James Madison and Thomas Jefferson in the early history of the United States. The Act is also a clear exercise of state sovereignty that comports with the historical development of the Tenth Amendment.

It has been several weeks. The 1Ls think they are busy during finals, but little do they realize just how much work goes into writing exam questions to torment them. I, and the other underdemons, are exhausted. We count some of the law professors as friends. Although others are quite distant from us, all in all we feel we’ve done a satisfactory job of convincing most of them to use irreducibly complex grading systemsâ€”even if they insist on writing easy questions. It should be quite a slaughter.

Meanwhile, I was proud to read your most recent correspondence. As a newly minted legal writing adjunct, you are doing everything I have suggested, and it has worked, has it not? You focus on the drudgery of legal analogy and the rote mantra of “short declarative sentences.” If the insipidity of the entire exercise doesn’t drive the lemmings to the cliff, the fact that one day they’ll wake up realizing their writing looks like fourth grade hogwash will. Outstanding work, nephew. I presume you’ve developed your own irreducibly complex grading system for the “open memos,” and I presume you’ve included a healthy 20-25% factor for the ever-nebulous “participation.” Keep them guessing.

It’s the only way to train minions. Fear is the best motivator, especially for humans who will work for us directly one day.

Your affectionate uncle,
Screwtape

]]>http://www.oshane.com/2010/12/screwtape-1ls/feed/1Being Patient with My Childhttp://www.oshane.com/2010/10/being-patient-with-my-child/
http://www.oshane.com/2010/10/being-patient-with-my-child/#respondTue, 19 Oct 2010 03:25:52 +0000http://www.oshane.com/wp/?p=350My wife is a consummate reader of parenting materials, and candidly, she usually has a good idea of what makes our son tick, and what a good course of action is with whatever is going on with him, whether it is encouragement, or redirection, distraction, etc. Hint: 99% of time, so-called “discipline” really isn’t the best course (or even a good course of action) for a child of his age. Why? Because the development of a child’s will is supremely important. And it is crucial for a father or mother to be patient with his or her child. Our Father in Heaven, of course, is slow to anger and quick to forgive. By slow, I imagine that He takes epochs to become angry and forgives instantaneously. Also, episodes of bad behavior usually tend to be instigated by the parents and are often the result of parental tantrums, not vice versa.

Michele posted a link to this blog post on Google Buzz, and I laughed when I read the “4 year old” line-item regarding typical behavior during meals. It warmed my heart that she and I generally do not scold him for being at the table. My favorite post on Parenting Passageway, however, has been this general overview about how to do ‘discipline’ with children.

Ben Metcalfe, quite rightly, is concerned about the precedent that Libya sets by the ad hoc imposition of Sharia law standards on the former http://vb.ly domain. The content there seemed too salacious for Khaddafi, and so the Libyan government either pressured or ordered nic.ly (the registrar for Libyan domestic names) to take the domain down.

Metcalfe makes reasoned appeals based on the terms of service of registration and the fact that there is no rule against the type of content he and his co-owner had posted. And yes, the underlying ideals to which he appeals are good ones. We should prefer free transmission of information over censorship.

On the other hand, Metcalfe’s response is lacking in pragmatism. First of all, when dealing with non-Anglo Saxon law, there is always a greater chance of decisionsâ€”administrative, judicial, executive, or monarchialâ€”being that of cadi justice. That is, there’s always a greater chance that decisions will be made without a justifying reason. Also, we often make assumptions about the interpretations of contracts, statutes and rules based on assumptions that do not hold in other places. For instance, in Anglo-American law, whatever is not prohibited is generally allowed.

Metcalfe writes,

In other words we felt that the NIC.ly registry was claiming it has deleted our domain for infringements that do not actually form any part of their regulations.

True, but this complaint is made on two assumptions of Anglo-Saxon jurisprudence and political thought, which I share but which much of the world does not believe in, viz., that a) the attenuation of reasonably expected rights, i.e., to continue the operation of a domain, requires some sort of notice or due process, and b) whatever is not prohibited is allowed. Many nations simply do not care about these bedrock principles of ours.

Second, this is Libya. Caveat Emptor. I find it slightly incredulous that one would set up a domain using the domestic Libyan TLD and not expect there to be some form of censorship. Metcalfe should be so glad not to be in Libya right now. I think it is likely he committed crimes in that jurisdiction based solely on the content he posted to vb.lyâ€”not that we should take any potential notion of such “crimes” seriously. Practically, however, Libya’s reactions seem not unexpected in light of its history and current widely-held belief system.

Third, speaking of jurisdiction broadly, while the internet in the abstract is free because of the millions of nodes it provides, the distributed nature of its structure, and the fact that it was built to withstand nuclear attack with the capability to reroute on the fly, it is hard to remember that nations still exercise traditional old-model notions of jurisdiction and control over whatever parts of the internet they can. It is not a sphere separate from the arbitrariness of conflicting law. Rather, it is a non-monotonic overlay.

It is a current fad to use exotic or esoteric TLDs to form cool domains, but we should remember that countries who “own” the distribution rights to those top level domains still exercise their backward (or forward) notions of legality upon those TLDs. There is less concern with very minute nations who use their TLDs as a source of revenue that they will clamp down on speech or information transfer they may disagree with.

One should not turn a blind eye, however, to the fact that the use of many TLDs may invite arbitrary behavior by the registrar, based on the laws of the jurisdiction in which the TLD is located. I am not saying what Libya did was right, and I am sorry for Metcalfe and his partner that this happened, but this was foreseeable.

]]>http://www.oshane.com/2010/10/libya-imposing-sharia-law-on-ly/feed/3Matthias Greenehttp://www.oshane.com/2010/10/matthias-greene/
http://www.oshane.com/2010/10/matthias-greene/#commentsWed, 06 Oct 2010 21:16:15 +0000http://www.oshane.com/wp/?p=324Matthias Greene is running for the Wyoming Legislature in a district in Laramie. His opponent raised questions about his residency status, which one can read about in the archives of the Laramie Boomerang.

I wrote a letter to the Editor of the Boomerang in support of Greene. Sadly, Matthias’s first name was misspelled as “Matthais,” at least in the online version. I went back and checked my saved file (last saved October 4, 2010, 7:03 p.m.), and confirmed that I spelled his name Matthias (IAS not AIS). Unfortunately, someone at the Boomerang didn’t fact check or has no familiarity with German names, or both.

Apologies to Greene: as someone with a name easily misspelled, I really am sorry this happened.

For centuries the book of Romans, chapter 13, has been used to extinguish the flames of liberty. It has been misused to such an extent in fact, that it has become the favourite passage of dictators.

When the State couldnâ€™t beat early Christianity it decided to join in. Soon the floors of Roman tax collection offices had Romans 13 inscribed, and slaughter in the name of Christ began. Hitler also used the passage, claiming that churches should take care of heavenly matters, leaving earthly matters to him. More recently, Mugabeâ€™s totalitarian government shamelessly played the Romans 13 card.

The Christian Right are using it right now, to exempt the State from basic laws like “Though shalt not kill” â€“ making it fine to slaughter the innocent in wars around the world. (See “If God is Pro-War â€“ He Lied“)

At the same time, the Christian Left continue using it to exempt the State from basic laws like “Though shalt not steal” â€“ making it alright for the State to take all it wants and pretend tax avoiders and evaders are the thieves and cheats.

God Plus Country, King, Queen, Government?

Whenever, in the minds of Christians, kingdoms of this earth are merged into the Kingdom of God (see “The Exclusive Kingdom of God“); inevitably their faith is compromised in favour of the earthly governmentâ€™s will and doctrine:

Faith in Godâ€™s provision is minimised, faith in the Stateâ€™s provision maximised.

Faith in Godâ€™s created authority is limited, faith in State authority extended.

Christian activity becomes influencing and expanding State activity, rather than supplanting it.

Reverence in church services is shared with the agents of the government and the flags and symbolism of the State. Governments have even created their own national churches.

But the Gospel of the Kingdom of God â€“ as Jesus taught it â€“ completely excludes the State, undermining it not temporarily, through superficial force of arms, but at its foundation in the hearts of men. That is why the enemies of Jesus and the early church were primarily the agents, allies or beneficiaries of the State â€“ local, national, and later empire-wide.

The early Christians were well aware that ancient Israel was established by God without any earthly government and continued that way for 450 years afterwards â€“ not in chaos, but under the civil Law, judges and natural family elders.

In line with this, the attitude of Jesus toward government and officialdom was made absolutely clear:

Obviously, words like this are not going to go down well with any government and so their allies have preferred to focus upon those scriptures that deal with practical instruction for living under pagan governments. Inevitably, practical instruction is reinterpreted to mean total submission and obedience â€“ the only limit on government authority being the imagination of officials. Other scriptures like Romans 13, upholding proper authority, have been redefined to glorify State supremacy.

Added to the rise of undisguised secular politics worship, the modern state apparatus in Christian countries is built upon the acceptance of approved interpretations of two main scriptures: “Render unto Caesar” (Matt 22, Mark 12, Luke 20) and Romans 13.

The objective was to turn Jesus over to the governor â€“ who would hardly object if Jesus taught a moral obligation to pay any and all taxes. Jesus taught no such thing. Instead, He showed them a denarius, inscribed and deifying Caesar as “theou huios” â€“ “son of the god.” The answer as to how much is Caesarâ€™s and how much is Godâ€™s therefore depends entirely on the faith of the hearer. Jesusâ€™ words were an invitation to choose allegiance.

In private, Jesusâ€™ instruction to His disciples on tax was plain and direct:

The message of this article is the same â€“ children of the only true King are free from any moral obligation to the State. Nevertheless (and thankfully) the Gospel does not mandate open physical resistance in the face of a tax demand â€“ just pay up and live to fight another day.

Romans 13 â€“ The Totalitarian Version

Some modern Bible “translations” of Romans 13 completely abandon textual accuracy and just say “obey the government” â€“ and are backed by a government copyright monopoly (see “Christianity and IP“). Other translations are less biased, but I am not a believer in the inerrancy of translators. In fact, I am going to make an attempt at “translating” Romans 13 myself.

But first, my own paraphrase of the authoritarian mindset:

Totally submit to the government and all its officials, for there is no official that is not preordained by God to rule you. Therefore, any sign of resistance to any official is defying God and you will be destroyed. But do whatever they decide â€“ that is being good and God through His officials will reward you. But disobeying anything they say or decide, any rule they make, is bad and you should be afraid because the governmentâ€™s agents have swords and guns with good reason â€“ and they are specially ordained by God to violently punish those who disobey them in any way, because to do so is evil. But donâ€™t just obey them because they are threatening you, you should actually feel guilty if you disobey in any way. You should pay them whatever amount they ask without question because they are serving God by taking it from you and doing their very special work. So give without question everything they ask: taxes are theirs, all your money is theirs, your respect is their right, your complete obedience is their right.

I think that is a pretty fair summary of prevailing ideas about Romans 13. If reading it does not cause a revolt inside you, then it should. That it is a distortion of Godâ€™s Holy Word is confirmed by its fruit â€“ contributing to the murder and enslavement of millions.

How many Christians has it influenced â€“ as soldiers, serving despots from Hitler to the Pentagon â€“ in concluding that, right or wrong, they are not responsible for innocent deaths but just following orders?

The door to liberty is wide open â€“ but the inmates are too scared to go outside.

Romans 13 â€“ Private Property Protected

Remember, the context of the book of Romans is a hostile Roman Empire with the likes of Nero and Caligula, while at the local and national level there were armed religious power elites.

I found the almost copyright-free Bible.org helpful, in particular this Greek interlinear feature. You might want to right click and open in another window to do your own translating. After double-checking in several places; this is my own translation/paraphrase:

(1) Everyone should be subject to presiding authority â€“ for it is not authority unless under God and only exists as ordered by God. (2) In which case, resisting such authority defies the order of God â€“ and resisting that invites enforcement action. (3) For a person in charge is no threat to good conduct but bad. Just behave well and you will be appreciated, (4) for he is your servant from God. But do evil and be afraid, for he does not bear a weapon without reason â€“ and in rage will exact a penalty on the wrongdoer. (5) It is therefore necessary to comply, and not only because of his anger, but for conscience sake. (6) For this particular reason (the punishing of wrongdoers) settle the annual levy for public officers when they are acting as Godâ€™s servants in this regard. (7) Yield to everyone that which is actually owed: a levy where a levy is due, a settlement where due, respect where due, at the correct price and amount that is due. Never withhold payment but rather love one another, for whoever loves his neighbour fulfils the law.

I believe that is a whole lot better and more accurate than most translations. I am not saying all other translations are completely wrong â€“ but their choice of words is generally guided by an underlying assumption that the State is exclusively the subject.

That is not the case.

Centres of Authority

In fact, the word often translated “authorities” or “powers” in verse 1 is not the equivalent of the State. The meaning, according to Thayerâ€™s and Vineâ€™s, is firstly the “liberty, the power to do as one pleases,” which a person has over their person, property or domain. It might even be translated “Everyone respect primary rights and liberties…” In 1 Cor 8:9 it is translated “this liberty of yours.”

Also, the word often translated “rulers” in verse 3 is not the direct equivalent of State officials. It is used elsewhere in the Bible to denote “rulers” of a synagogue, judges, elders â€“ anyone in charge of a social function. The Bible even refers to a “ruler of the feast” and a “governor of the feast.”

In fact, there are multiple legitimate centres of authority described in the Bible and which are ordained and set in place by God. Each one is violated by the lawless State when it claims authority it does not have over these domains. For example:

A father has the duty to serve for the good of his household, guests and visitors. This authority is clearly limited, yet in the case of trespassers and armed robbers, a head of household has every right to use force and violators should be very afraid of incurring his wrath.

A landlord or landowner has every right to control and protect his property by forceâ€”

Jesus taught the parable of the landowner, who leased his vineyard to tenants, who killed first the landownerâ€™s employees and then his son. Jesus asked the disciples what the landowner should do. The answer, fully accepted by Jesus, was that the owner should destroy the tenants.

A church leader is ordained to serve the congregation, but also to direct church affairs and should have security measures in place. But limitations are clear â€“ when a leader starts assuming authority over the life, household and money of members, it becomes a cult.

A business proprietor exists to serve his customers, but also to direct the business and guard against thieves. Customers will be valued and served; but thieves and troublemakers should be ejected â€“ by force if necessary.

To uphold all of these rights, liberties and centres of authority, there is a legitimate place for third-party public judicial resolution of grievances and enforced punishment for those who are violators. This is included specifically in verse 6 of the passage.

But this function does not extend to making up new laws or creating new centres of authority; only respecting those already given by God. Assumed authority just does not exist â€“ no one has the right to institute a new authority or domain in order to dominate others.

The Divine Right of Kings?

As worded by many translations, the second part of Romans 13:1 is ambiguous. The typical rendering is “There is no authority but from God and those that exist are appointed by Him.”

In addition to assuming that the State is the exclusive and all pervasive authority referred to, the prevailing interpretation is that any and all officials named by the State as an authority are ordained by God.

Many Christians today actually believe an official can write a number by the side of a road and more or less create a new sin â€“ exceeding the speed limit â€“ whether anyone was actually endangered, let alone hurt, or not.

Many believe that God required 10% but that governments have a divine blank cheque. They might protest at the current 50â€“60% of GDP that is being spent in places like the UK and the US, but still believe that not paying it would be robbery in the eyes of God.

We might at least expect a consistent misinterpretation, but many of the same people support invading and deposing other “divinely appointed” governments. When faith is in “God and Country” â€“ and where “Country” means “Government” â€“ it seems that their Country must prevail.

The conclusion: The only possible meaning consistent with other scripture is that authority of any kind â€“ home, business, church, judicial â€“ only exists to the extent that it is from God and as ordered by Him in creation. All other falsely assumed authority should be opposed:

Authority and Force

Godâ€™s people were always armed. This is evident on countless occasions from Abrahamâ€™s household slaying marauders to David killing Goliath. In fact, the only time they were unarmed was when disarmed by the Philistines.

Jesus himself affirmed this in Luke 22, when he commanded his disciples to make proper provision, their having undergone earlier special training to rely exclusively on supernatural provision:

As mentioned earlier, He had already said, “a strong man, fully armed, guards his own palace, his goods are in peace” and affirmed the authority of a landowner to use force against violent thieves.

But on top of this, Jesus personally, as rightful Head over the temple in Jerusalem â€“ made a whip of cords and used it to drive out the moneychangers.

At the same time, revenge and getting our own back is not right. Jesus did teach turning the other cheek to insult and provocation, even to suffer non-critical loss or hurt, in order to exercise mercy and to avoid trouble.

Judicial Authority

The apprehension of wrongdoers is also a legitimate use of force. The judicial system is introduced in Romans 13:6, but with the clear proviso that it is there for one purpose â€“ respecting, enforcing and protecting rights, liberties and proper centres of authority.

Paul was pointing out â€“ in the context of a violent Roman dictatorship â€“ that where there is a local judicial system and insofar as it operates to punish actual wrongdoers (thieves, murderers etc.) Christians should go along with it and even be willing to pay for it.

That does not make the Roman government system or any other right or necessary:

In Anglo-Saxon countries until the mid 1800â€™s with the introduction of police, the administration of justice worked well, largely without government. The Common Law was (and still is in some places) administered by unpaid local Justices of the Peace and Constables who were independent and often opposed the State. “Citizenâ€™s arrest” was the primary means of enforcement. Enforcement of law under ancient Israel was similar, with Judges and volunteer officers of the court.

Note that Romans 13:6 refers to a moderate annual levy (or tribute) â€“ it is not a blanket endorsement of all tax for all reasons.

Honour all people

Finally, verse seven returns to showing due respect for “everyone” in general:

A landlord has the right to be paid for rent â€“ on time. A passenger should pay his fare. Bills should be settled when due. A “keep off the grass” sign posted by the owner should be respected. A teacher should respect the Principal. A CEO should respect the company founder or board Chairman.

The message of Romans 13 is to respect others rights, financial or otherwise, wherever rightly due. But the lines and limits of authority in each of these cases is clear to most people. It is an anomaly when Romans 13 is read as if there were no limits to the authority of government, that it can make up its own laws and enforce them violently with divine backing.

Prudence and Practicality

It is one thing to realize the illegitimate nature of the State (read 1 Samuel Chapter 8 if you have any lingering doubts); it is another to defy it openly.

Sometimes open defiance is right â€“ where a government drafts soldiers to kill innocent people; where a government switches from insidious corruption to open confrontation of Christianity; where a government comes to seize or indoctrinate children; or where backed by public support.

Then again, an otherwise illegitimate governmentâ€™s actions can be supported where it confines itself to proper judicial enforcement against actual wrongdoers â€“ as defined by the laws of God, and without violating the innocent. Some scriptures cover this:

1 Peter 2 makes clear that it is important “for the Lordâ€™s sake” that we comply with human institutions, where it will help spread the Gospel. Our objective is transformation from within, not just superficial defiance. But only “the punishment of evildoers” is legitimized, not any arbitrary right to redefine good and evil.

Much is made of “Fear God. Honour the king.” But why should this not be reminding us of the true King, Jesus? Even if it is ambiguous, why should the other possible meaning be any more than an instruction to be courteous, and to love even our enemies â€“ the same Greek word is used in the same verse: “Honour all people.”

Titus 3:1 uses exactly the same Greek word for “authorities” or “powers” as Romans 13, defined by Vineâ€™s first and foremost, as “power of choice, liberty of doing as one pleases,” which may indeed include judicial authority, if and when it operates within its remit.

Most of the time however, dealing with the improperly assumed authority of government is simply a matter of practicality and prudence in the face of violent force.

Final Thoughts

Understanding proper God-given centres of authority is the key to understanding Romans 13. Thatâ€™s why I appreciate Romans 13 â€“ it upholds our own rights and domain along with the rights of others.

Think about the 95% of daily life that the government cannot control. Why is it not chaos? Life is ordered by natural spheres of authority, ideally revolving around the family household for social provision, and free enterprise for material provision.

Above this, there is only one true King, the Giver and Protector of all liberty.

It is time for Christians to retake their proper authority, stop yielding themselves as “slaves to men,” and speak out for the exclusive, supreme Kingdom of God and against the usurping kingdoms and governments of this world.

September 28, 2010

Paul Green [send him mail] is of British background and supplies computer security and privacy services in the UK and Switzerland â€“ while his wife home-schools their children. Over the years he has also traded the financial markets and worked in sound production.

The new academic year is approaching, and this will be my third year in law school. As I was doing my annual reorganization of my academic bookshelf, I came across a book, Starting Off Right in Law School by Carolyn J. Nygren. If I could recommend only one book for first-year law students, it would be this one.

At 117 pages, it is short and pithy, and it contains everything a new law student needs to know about succeeding in law school. Nygren’s method of case reading, note taking, outlining and examination technique has constituted the core of my study practices over the last two years. It is a substantial reason for my success (I am currently second in my class), and has doubtless saved me countless hours that I could have spent over-studying the wrong types of material.

We came back from vacation last week. While we were gone, our lawn became a jungle. We have long winters here in Laramie with short springs; I’m not sure, but I think the plants start to get restless and as soon as the last snow melts, they jump out of the ground and grow as fast as they can.

Anyway, some of the grass in my front yard was quite high – maybe 18 inches. Some of the grass in my back yard was two and a half feet tall. I know, that’s a little socially awkward in a residential neighborhood. I wasn’t cavalier about it; I just had quite a bit to do when I came back from vacation.

So today I mowed my lawn. Our lawnmower was broken, and the neighbor who lets me use his was not at home. So I bought one.

I bought a gas-powered lawnmower. I do think electric lawnmowers are cool: they are quieter and have zero-emissions. Batteries on electric lawnmowers are becoming more powerful such that one can mow an entire reasonably sized lawn with one.

But, it was evident an electric lawnmower wasn’t going to cut it today.

The lawn required two tanks of gasoline and may have been so thick that it damaged the front-wheel drive (I have to check). The job took about three hours, and near the end, as dusk was approaching, I realized I might be doomed.

Near the beginning of Laramie’s summer, legions of mosquitos hatch. There are so many sometimes that they form clouds. Laramie controls them with god-knows-what-kind-of-evil chemicals, but they do the job, mostly. Still, when you’ve killed ninety percent of fifty bajillion mosquitos, fifty octillion remain (yes, I’m defining 1 bajillion as 10 octillion).

They wanted me. Usually, I am not the most attractive human to mosquitos, but I was the only human around, and I was razing their homes and businesses. They started to fly closer to me, but then flew away.

Then I realized I had certainly made the right purchase. Heavy hydrocarbons are mosquito kryptonite. It seems that all the emissions of a dirty four-stroke engine drove the little Culiseta longiareolatae away from me. The engine might as well have been emitting DDT.

]]>http://www.oshane.com/2010/06/gas-powered-lawnmowers/feed/1Continuously Updating Anticipated Package Delivery Timeshttp://www.oshane.com/2010/06/continuously-updating-anticipated-package-delivery-times/
http://www.oshane.com/2010/06/continuously-updating-anticipated-package-delivery-times/#commentsThu, 24 Jun 2010 18:04:24 +0000http://www.oshane.com/wp/?p=274In general, receiving packages from the large private common carriers (FedEx, UPS, etc.) is easy and straightforward. They have the incentive as for-profit enterprises to be as customer-focused and efficient as possible.

One thing that slows the process down somewhat is the requirement of a signature for delivery. Of course, common carriers have learned that not all packages need to be signed for. Senders and recipients are often happy taking the minimal risk that loss may occur on the doorstep despite good faith by the common carrier in transport and delivery, because the irritation of hassle, particularly in having to be at home to receive personal packages, is greater than the risk of loss of value.

Naturally, the requirement of a signature for delivery of some packages is an important commercial and legal tool, because it provides for certification of delivery by the customer (or customer’s agent). If the customer signs for the package, he knows it has been delivered–to him personally. The common carrier knows it has been placed in the hands of the customer or the agent, versus assuming it will be picked up properly by the customer on his doorstep when he gets home, thereby decreasing the chances of theft, damage by weather or other mishaps. And finally, the sender can rest assured the package was delivered to someone who was willing to sign for its receipt. While if the customer himself does not sign for the package yet his agent or someone else does, there is a minimal chance of misplacement, but if the circumstances surrounding delivery are reasonable and in good faith by the common carrier, the law will not disturb the presumption of proper delivery. And practically speaking, loss does not occur terribly often in such situations.

Common carriers have made the process a bit more efficient for senders and recipients, because online tracking allows us to find out where packages are in the transport process. So, recipients receiving personal packages at home can gauge the day when the package is likely to be delivered. Some residents are fortunate to know the time the common carrier’s driver generally will appear and can make sure to be at home around that time. Unfortunately, however, tracking updates only provide limited information, viz., the day of delivery. Anticipated delivery times are rarely, if ever, designated by the common carriers.

But if they could or would designate anticipated times of delivery, the recipient could more efficiently plan for being at home for delivery. Certainly, if the driver has fewer packages on a given day, it is in the carrier’s interest to be able to deliver earlier than normal. And if there are a great number of packages on a route on a given day, it would be advantageous for the driver to be able to deliver as close to the day’s deadline as possible. Thus, it is understandable that a common carrier would not want to promise delivery or legally obligate itself to do so between a certain time band (absent a profit opportunity that would give it incentive).

Still, in the interest of providing constituents (senders and recipients) information with which they can better plan their days, I suggest common carriers should implement GPS-based technology to inform the constituents of likely delivery times. Of course, for security and proprietary reasons, a common carrier may not want to display to the world the exact location of its trucks at any one time. The technology could, however, combine the known delivery routes a carrier’s trucks with their location. Based on continuous GPS updates of the trucks’ locations, which common carriers most certainly employ today for internal monitoring purposes, the carriers could reliably extrapolate delivery times based on continuous updates to the zeroth-order truck locations, first-order truck velocities and even second-order truck accelerations on their delivery route contours. Such extrapolated times could be updated to the tracking numbers so that recipients, especially, can plan better when to be home to receive signature-required packages.

One of his more poignant theses is that mandatory “free” public schooling was created and is intended to make children mediocre and compliant, specifically by denying them real training in thinking critically. “School trains children to obey reflexively: teach your own to think critically and independently.” His juxtaposition of reflexive obedience and critical thinking as polar opposites is a compelling contrast. Soldiers are not expected to think critically; they are expected to obey. Prisoners are not expected to think critically; they are, quite oppositely, demanded to obey. So why are children expected to obey teachers and schoolmasters reflexively? Because they have putative authority? Garbage! If the Founders of this country reflexively obeyed their King, we would be British subjects.

As parents, we should hope that and train our children to reflexively obey us, at least when we employ the Look or the Voice to let them know that immediate obedience is important. Most times, however, it has become clear to me recently that we should allow our children leeway to ask us “why?” so that we can teach them greater reasoning. Sure, at some point, when our children are young or are impulsive or lack wisdom and are in our care, we may need to curtail the discussion for their own good, but more often than not, children should be treated with the same respect we expect of other adults. We should give them the courtesy to act thoughtfully and give them commands, guidance and suggestions with love, not with imperiousness.

Public education, on the other hand, greatly rewards behavioral compliance. From a utilitarian view, schools couldn’t function without it. See William Golding, Lord of the Flies. But we should ask why, philosophically, should a place of education expect behavioral reflexivity?

Why should my child or your child obey a virtual stranger, the teacher, without question? Because the law mandates that children, absent meeting the requirements for homeschooling, be present in school and obey? Rubbish. I may want my children to generally respect other adults, but I do not want my child to obey them reflexively.

This evening I was looking through a smattering of old school records. I graduated high school with a perfect cumulative 4.0 grade point average, so my ability to thrive inside a public educational environment is not in question. I do not approach this issue with a chip on my shoulder.

Some of my permanent record jumped out at me. In my American History class in high school, the teacher noted I had too many absences. I don’t generally remember being absent from classes in high school unless I was sick, so how many was too many? And since I received an A and understood the material, why does it matter anyway? Take a step back. Why does it matter whether, assuming a student apprehends the material to a comparative level of exceptional competence, he is absent or, {gasp}, he never shows up? Presence in a classroom where the material is already known must serve another purpose. I think Gatto is correct when he points out that it serves the purpose of ensuring that children are compliant citizens for government when they become adults.

To the same extent, I saw my absence records for elementary school. In one case, I think my first grade report card noted that I was not in class for 3 1/2 days out of some period. Since I was 6 or 7, I highly doubt that I was willfully truant, so I must have been absent at the behest of my mother of father. Why in the world should it matter enough to tell the parents when a first-grader is absent?

One might argue that it is a matter of safety. If my mom or dad didn’t know where I was on a given day, a record of my total absences one to three months later will be irrelevant for promoting my safety. No, what it serves is to cajole, scold &/or enlist the parents into helping the State teach their children to be compliant.

Reinforcing this idea is that most of my grades (ranging from Satisfactory + to Satisfactory to Satisfactory – to Unsatisfactory) had to do with behavior, not apprehension.

It has never bothered me to this extent before, but now I review my old records and I am reviled by the counting of my attendance and the remarks about my behavior. I was always a superbly obedient kid, particularly in school, but it grates on me now to think that anyone ever had the authority or power to count my days present and absent in a system that is built to ensure mediocrity and to command my fealty.

Online game software licensing authentication has come into vogue. Gaming software companies have promised users the ability to purchase and download games at any time without having to go to a retail outlet and by giving them the added benefit of a license key permanently tied to their account. They have also given users the ability to re-download any game at any time so that the users never have to worry about losing a disc and have the added convenience of being able to reinstall almost automatically on a restored, rebuilt or new computer.

In return, the leaders in the online licensing and distribution space, Steam and Impulse, have garnered loyal customers. More importantly, in return for convenience, they lock users into licenses that are not transferable â€“ not alienable.

Certainly, those licenses may indicate they are not transferable by sale or gift or otherwise anyway, but what parochial gamer reads such licenses or cares? And why should the gamer care? If he owns physical property (a disc) and possesses a code that allows him to play the game, why should he not be able to sell the disc and the code to another person for a lower-than-retail price once he is finished with the game?

Game companies donâ€™t like this. Instead of making $50 on one sale, even though two or three players may have enjoyed serially gaming on the same license, the companies would prefer to sell the first copy to the early adopter for $50 and then a new copy to the second player, perhaps at a reduced price of $40 and a third copy to a third player for $35, and so on and so forth.

So, as is often the case, the interests of the game-players (in aggregate) and the game distributors are in conflict. When they have been heavy-handed, game companies have usually lost the battle: onerous copy protection is often cracked and no one, candidly, blinks an eye at selling a used game to another person. The original purchaser believes (errantly) that he owns a copy of the game and that a sale to a new person is just between him and the new buyer.

To my mind, it is unfortunate that game distributors and publishers do not simply acquiesce and adopt an ownership rather than a license model. But, it appears the companies have realized that wielding sticks with computer gamers is not so effective as employing carrots or honey.

The honey is what Steam (and Impulse) provides: ease of purchase, immediate notification of upgrades, an automatic authentication system (no need to input silly numbers anymore), saved records that are never deleted, and the assurance that gaming preferences will be stored, for some games, for your account no matter where you access the game.

Of course, the honey is meant to gently ensnare gamers. Once a player purchases a game on Steam and similar services, he cannot resell it or give it away. There is simply no mechanism for transferring the license to another person.

Why Steam’s Model is Misguided

There is nothing inherently morally wrong with the model that Steam uses to attempt to increase sales. I do think it is misguided and not as profitable as people believe.

Currently, if Player One buys a game for $50, defeats it and is now finished with the game such that he will not reasonably replay it, what does he do? Nothing. The license is stored for him forever. Valve Corporation, which owns the Steam platform, and the game publishers that use its platform believe that forcing customers to buy new games directly from them will increase overall aggregate revenues in the long term. Sadly, this belief is similar to the beliefs that perpetuate the Broken Window Fallacy.

On the other hand, lower prices decrease barriers to entry, and augment network effects for continued adoption of the game.

If Player One could sell the game to another, Player Two, for a lower price, letâ€™s say $30, certainly Steam would like to garner that money for itself, and so hopes that by restraining alienation (preventing resale), that Player Two will buy the game directly from Steam so as to ensure that the money that Steam receives in total is $80. For this to be true, assuming Player Twoâ€™s preferred price is $30, Steam would have to lower the price at about the time that Player Two is willing to buy the game. If Steam doesnâ€™t do so, the opportunity to make the sale is lost, and in the meantime there is no way for Player One to recoup any money.

Why should Steam want Player One to recoup money? Because Player One has already demonstrated himself to be a willing customer of Steam. If he is willing to spend $50 to purchase from Steam, he likely is willing to take the $30 he might gain from a sale to Player Two to put toward a new purchase. Steam could easily see the $80 anyway. In fact, since Player One has demonstrated himself to be an early adopter, he might put the $30 he receives from Player Two toward a new game of a higher price, effectively turning a $30 sale to Player Two into a new $50 purchase with Steam. In the end, Steam does not get the $30 sale to Player Two, but it does receive $100 from Player One.

Certainly, there is no guarantee Steam will realize a sale in either scenario, but over the aggregate, it seems more likely that players who are already predisposed to buying new games would take money they received from sales to third-party players and purchase from Steam again.

Furthermore, if a player could alienate his games to people on the Steam platform, the player would, in many instances, invite buyers to create new accounts with Steam so the license could be transferred, increasing Steamâ€™s potential customer base. Steam can now directly advertise to the buyer/new player as a captured customer.

How to Punk Steam1

(How to Break the Misguided Business Model for Online Game Distribution)

Absent the creation of a platform that allows alienation between users of gaming software licenses (or Valve/Steam and others changing their tunes), I propose the following idea. I leave it open to any innovative, courageous group of software engineers to implement, given that there are numerous intellectual property and contractual licensing obstacles to overcome (read: Valve will likely sue you).

For the sake of the argument, letâ€™s call the new company Punk.2 Punk would sign users up for the express purpose of enabling them to pseudo-alienate their licenses between one another.

Punk would operate as a meta-authentication system. That is, Punk would sign users up with accounts and would also require the users to connect their Steam accounts to their Punk accounts. Punk would then magically access and index a userâ€™s Steam licenses. The Punk system would do so for each of its legion users.

The user would specify to Punk that it would like to alienate, or rather, pseudo-alienate a gaming license to another Punk user. In order to do so, Punk would serve as an intermediary protocol between the new user (â€œbuyerâ€) and Steam. This would likely require two layers, an online account layer for Punk as well as a regularly updated client downloaded by its own users so that the client can interface with the Steam client.

The Buyerâ€™s Punk client would send requests to Steam, disguising itself as the original user (â€œsellerâ€) using the Sellerâ€™s stored, encrypted authentication information so that Steam believes the license is properly authenticated to the computer sending the request. Once the authentication for the license is approved (since Steam requires online authentication each time a player plays his game), Punk would have done its job, because now the Buyer is able to use the Sellerâ€™s game. In a sense, Punk would serve to de facto shard the licenses of a Steam user’s account, allowing a Buyer to use whichever of the Seller’s licenses the Seller allows. Of course, the system would be designed to allow multiple Buyers to authenticate to Steam via Punk. Punk, in the background, is keeping the authentication of all interested parties separate, discrete and encrypted.

So, when the Seller looks at his Steam account, he sees nothing has changed. A Steam account will still show all licenses, unperturbed. But the Punk account will indicate the games he has pseudo-sold to other Punk users. Punk would have to interface with the Steam client to ensure that the Seller does not continue to play his licensed game directly via Steam, else this would break the model. Punk could do so by integrating as a layer on top of Steam and function by monitoring Steam activity. If the Seller continues to use his license and prevents the use of the license by the Buyer, Punk could employ a warning / fining / banning system to enforce the transactions between its users. Caveat emptor.

The business model (disregarding tortious interference of contract claims), of course, is obvious. Punk provides the inter-user transaction mechanism (the checkout cart), and take a percentage of â€œsalesâ€ between Punk users.

Steam would likely try to thwart Punk, just as Apple combats the jailbreaking of iPhones, so there are some obstacles to consider:

Until Punk was able to overcome any current thwarting mechanism created by Steam, the Buyers would be precluded from playing the games they had â€œbought.â€ Disruption of service would be wholly annoying to any Buyers. Certainly prices would reflect this potential, but it also, alone, has the possibility of preventing this model from working at all.

Valve (Steam), Stardock (Impulse) and others would not hesitate to sue Punk under various legal claims.

Ensuring Sellersâ€™ compliance with the terms of the pseudo-sale, which could mandate the Sellersâ€™ non-use of the software they had alienated to other Punk users is the other likely failure mode for the model.1 With credit to MTVâ€™s Punkâ€™d2 Apologies to any companies out there who are actually operating under the trademark â€œPunkâ€ â€“ I mean no reference to these entities.

]]>http://www.oshane.com/2010/03/punking-steam/feed/3Heroic Movie Scene from Shenandoahhttp://www.oshane.com/2010/03/shenandoah/
http://www.oshane.com/2010/03/shenandoah/#commentsTue, 23 Mar 2010 08:42:52 +0000http://www.oshane.com/wp/?p=230This is a scene I watched just a few minutes ago from Shenandoah with Jimmy Stewart:

Stewart plays Anderson, a Virginian farmer with six sons, whose land is surrounded on all sides by Union armies. He refuses to participate in the war, at least at he beginning of the movie. Johnson, a Confederate soldier comes to him to recruit Anderson’s sons.

Johnson: Thereâ€™s a Yankee army breathing down your neck, Mr. Anderson. I donâ€™t think you realize â€”Anderson: Youâ€™re town-bred arenâ€™t you?
Johnson: I donâ€™t see what that has to do with â€”Anderson: Iâ€™ve got five hundred acres of good, rich dirt here. As long as the rains come and the sun shines itâ€™ll grow anything I have a mind to plant. And we pulled every stump. Weâ€™ve cleared every field. Weâ€™ve done it ourselves without the sweat of one slave.
Johnson: So?Anderson: So?! So, can you give me one good reason why I should send my family that took me a lifetime to raise down that road like a bunch of damn fools to do somebody elseâ€™s fighting?
Johnson: Virginia needs all of her sons, Mr. Anderson.Anderson: That might be so, Johnson, but these are my sons! They donâ€™t belong to the state. When they were babies I never saw the state coming around with a spare tit. We never asked anything of the state and never expected anything. We do our own living â€” and thanks to no man for the right.

Disclosure: A friend of mine forwarded this to Stephan Kinsella, a libertarian lawyer in Houston, who also posted it on his blog, which I’m happy for, because his readership is much larger.
]]>http://www.oshane.com/2010/03/shenandoah/feed/2PageRanking Law Schoolshttp://www.oshane.com/2010/03/pageranking-law-schools/
http://www.oshane.com/2010/03/pageranking-law-schools/#commentsTue, 09 Mar 2010 06:43:15 +0000http://www.oshane.com/wp/?p=222It seems obvious to me that the US News & World Report ranking system creates an elastic quasi- virtuous cycle, where top schools are ranked such by the magazine, so that the schools cater their programs to US News’ ranking standards, so that they proactively work to improve their rank, causing them to cater to US News. US News rewards them for their efforts. Meanwhile, students trust the magazine for its rankings and apply to schools accordingly. Colleges continue catering to the magazine, because they believe students trust it. It’s a perfect type of market for anyone who can get into the business — a virtuous cycle, that is.

I propose ranking law schools by a well-known “new” method: Google PageRank. That is, run a simple query to see which law school websites are more or less relatively popular. PageRank is about as unfiltered by bias as we could expect, given the distributive machine-oriented nature of the relative evaluation. There’s no need to rely on paying a third-party (US News) for its self-serving preparation of the material. Instead, just perform a Google query, such as [law school].

There may be a question as to whether the popularity of a website is a good proxy for the measure of a school, but linkurls will link to those websites for a myriad of reasons important to the information generator or provider who linked to the website. Google incorporates the legion reasons people find certain websites more popular than others, and it is not terribly necessary (I believe) to examine our collective, distributed navels to find out whether it is a “good” proxy, since it is, facially, more objective than a human-filtered system like US News.*

Now, the results will be somewhat tailored to your locale and to other attributes, presumably to give you, the searcher, the information in a form most useful to you. That is, your relative rankings may vary somewhat from the ones I list below, but wouldn’t that be much more useful to you anyway — to have search results that tend toward your own needs? Imagine that. Here they are, relatively ordered, through the 10th search result page (that does not mean there are 100 listed, since other websites related to law schools appeared in the results interspaced, but are not included here):

I bet Duke, Northwestern and Cardozo will find this ranking system to be unreliable. =)

*This is not entirely independent from US News, since US News’ own linkurls will point to these law schools and be crawled by Googlebot. Vice versa, some of these websites may link to US News’ website, strengthening the PageRank of US News in a way that makes Google find certain law schools more popular, even if it is likely negligent. At least that is what we will assume: that the linking to or from US News negligently affects the overall PageRank of a law school.
]]>http://www.oshane.com/2010/03/pageranking-law-schools/feed/2Answer to a Question About the Oral Arguments in McDonald v. Chicagohttp://www.oshane.com/2010/03/privileges-immunities-mcdonald/
http://www.oshane.com/2010/03/privileges-immunities-mcdonald/#respondMon, 08 Mar 2010 04:06:36 +0000http://www.oshane.com/wp/?p=210A friend on a liberty-minded mailing list posed this question:

Can one of the lawyers on this list give us some color on the Supreme Court extending [the] 2nd [A]mendment to the states on the basis of due process versus on the basis of privileges and immunities?

As far as I know, there are no lawyers on the list, but from common understanding, he meant to pose the question to anyone affiliated with the law, so as a law student, I answered with the following response (with minor edits).

Section 1 of Amendment XIV reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis added).

The Notion of the Common Good in the Revolutionary Era
The Federalists and Anti-federalists disagreed about a great many things as they pertained to governance in the new nation after England signed its treaty with the united States. A common desire, however, was that government power, where present, should only be used for “the common good.” There were philosophical disagreements about what the common good was, but Paine-ites and Madisonians would agree that government working for “partial or private interests” was clearly violative of natural rights. For example, taxes might be raised to build a town hall to allow communal participation in government: and, as such, would have been considered a common good. However, if taxes were raised to subsidize farmers, they would have been considered antithetical to good governance as working for partial or private interests.

As such, the courts were wont to view legislation through the prism of the common good-partial or private interests dichotomy all the way through 1937.

Slaughterhouse Cases
In the early 1870s, Louisiana had chartered a corporation to create a monopoly over the butchering industry in the in the greater New Orleans area. Butchers were required under state law to subscribe to the corporation in some manner in order to actually do their work. A group of them challenged the law under the newly adopted Amendments XIII, XIV and XV in various cases. The Supreme Court granted certiorari to hear the cases, which over time became collectively known as the Slaughterhouse Cases.

The core of the plaintiff-butchers’ arguments relied on the Privileges or Immunities clause of section 1 of the 14th Amendment. They asserted that Louisiana was restricting their privileges and immunities to work independently in their stock and trade. They further asserted, as a matter of policy, that to allow Louisiana to favor some butchers (the compliant ones) over others (the plaintiffs) was tantamount to favoring partial or private interests over the common good.

From a plain language standpoint, arguing the Privileges or Immunities clause was the most logical, because the butchers believed that they had inalienable privileges and immunities (rights) that had been alienated by Louisiana. This clause and the equal protection clause are the strongest clauses in favor of individual rights in Section 1, because they invoke the idea that certain rights, even if vaguely defined, are unassailable. I’m not even sure the due process clause was considered by the Slaughterhouse plaintiffs, because the due process clause allows for rights to be taken away as long as the process of law is duly followed.

The Court, however, rejected the argument on notions of legislative intent and a very arcanely narrow reading of the phrase “citizens of the United States.” The Court first reasoned that the Amendments were primarily intended to free blacks from slavery. Since the butchers were white and slavery was not at issue, the Court held that the use of the Privileges or Immunities clause was inapposite as they were not contemplated by the purpose of the amendment.

Furthermore, and strangely, the Court also reasoned that the phrase “citizens of the United States” modified the Privileges or Immunities clause by invoking a national interest rather than state interests. That is to say, the Privileges or Immunities clause was only protectionary of a national interest, to wit, a protection against enslavement. The Court ruled that the clause was not applicable to matters of state interest and held that because corporations were creatures and matters of state governments, the Privileges or Immunities clause could not be applied in favor of the butchers, and they lost the appeal.

Incorporation
At jurisprudential issue in the Slaughterhouse Cases was whether rights purportedly guaranteed to individuals by the original Constitution, Congress, or especially the Bill of Rights could be incorporated (enforced) against the states. As putative sovereigns, states were not considered to be bound by most of the rights guaranteed by the Bill of Rights before the Civil War. The federal government could not abridge speech, so it was alleged, but the states could. The federal government could not quarter soldiers in homes during peacetime, but presumably the states could.

Most of the time the distinction was nonexistent, since states governed similarly, at a broad level, to one another and the federal government, but where the issue arose, most Constitutional rights were not incorporated to the states.

The Legacy of the Privileges or Immunities Clause
Because of the narrow reading of the P-I clause of Amendment XIV, it rendered the clause a virtual nullity since 1873. In fact, its inclusion in the Amendment, given the Court’s interpretation, makes it vacuous, because states have rarely, if ever, dared to deny federal rights to their residents. Perhaps the P-I clause might be meaningful again if a state attempted to legislate that no resident could vote in a federal election again. For the most part, though, the clause has been meaningless since 1873. The Supreme Court’s narrow reading of P-I is especially ironic, because the 13th, 14th and 15th Amendments were very clearly ratified to attenuate the despotic power of states over their residents (and in the eyes of some, indirectly grant the federal government more of that despotic power). That is, in narrowing its scope, the Supreme Court likely abrogated the whole reason for including the Privileges or Immunities clause in the 14th Amendment.

Meanwhile, states could establish churches (and did, at least until that went out of vogue in the 1830s), abridge speech, regulate the right to carry and bear arms, disallow jury trials for criminal defendants, force criminals to testify against themselves, etc.

Jurists and lawyers began searching for a way to enforce federally protected guarantees against state intrusion to prevent circumstances as in the above examples from happening. P-I would have been the most logical, but they began to, out of necessity, argue incorporation against the states under the due process clause instead.

Substantive Due Process
Only the law could generate an oxymoron for such an important doctrine, but the theory of substantive due process began to develop more robustly after the Slaughterhouse Cases, likely because the substantive guarantees that would have been affirmed via Privileges or Immunities were lost when the clause was swept into the dust bin of the Supreme Court’s history.

Instead, it began to be argued that Due Process protected not only the literal process of law against arbitrariness and caprice, but that there were inherent substantive guarantees in the notion of due process. One could take away another’s freedom for committing a heinous crime, but one could not abridge the right to a jury trial, period, even if the state purporting to do so had its own sovereignty.

Some argued that process does not include the notion of substance, but the history of the notion of due process belies that argument. Yet, state courts themselves would, even at the time of he country’s founding, adjudicate cases invoking Due Process as equivalent to the Law of the Land, which, for them, included natural rights substantive protections that were implied or not often stated in state constitutions. That is, there was always a substantive component to the interpretation of due process at the state level, so the idea that one could use it at the federal level as against states was novel, but not untied to history.

Over time, one by one the Court began to incorporate rights guaranteed by the Bill of Rights against the states, but even as late as 1908 in a case called Twining v. N.J., the Court held that the Due Process clause did not incorporate the 5th Amendment right against self-incrimination to the states. The Court at this time was still prone to employ a priori natural rights theory instead of looking solely to the text of the law at hand, and so, strangely, it stated that exemption from self-incrimination was not “an immutable principle of justice.”

Later, the Court overruled itself and did incorporate the 5th Amendment to the states.

In another case, Palko v. Conn. (1937), the Court held that free speech was incorporated to the states, but the free exercise of religion was still a state matter and one they could regulate or control.

The cases discussing Substantive Due Process are legion in the Court’s reporters, and the doctrine, while never quite self-consistent, is very well-developed. Over the 20th century, most of the Bill of Rights were incorporated, except for a few hold outs. The 2d Amendment has been one of them.

But, due process has never been a 100% unabashed guarantee of rights. In all cases, the states have the ability to regulate various rights guaranteed as long as there are certain background circumstances present and their is due process. That’s the whole point of the clause. So while the rights are fairly well understood and protected, they are not absolute in the eyes of the Supreme Court. Tests for whether substantive due process is upheld or violated vary greatly from topic to topic:

Economic substantive due process is measured by a deferential reasonableness test.

The Right of Privacy, as implied by the Ninth Amendment, is protected by a test of strict scrutiny.

Abortion rights are protected by a difficult-to-pin-down Undue Burden test.

The Freedom of Association rests on the solidity of the evaluation as to whether the association on a continuum is like a marriage versus like a business enterprise.

Freedom of Speech has many different tests depending on the type of speech involved.

Arguments Before the Court Re: The Second Amendment in McDonald v. Chicago
Alan Gura, the attorney for McDonald, attempted to argue Privileges or Immunities again. Why? Because if he could convince the Court to resuscitate the doctrine, it would have, conceivably, been a stronger protection against later abrogation by the states if gun ownership was an immunity that could not be abridged. Unfortunately, he did not do a good job of arguing, and even the few justices who might have been inclined to review a law that has been the same and untouched for 137 years did not seem moved by his arguments.

Instead, the discussion mainly centered on using the old standby, Substantive Due Process, to incorporate the rights against the states. What is difficult is that Chicago’s attorney responded to the argument by stating that Chicago (as an agent of Illinois) has not abrogated the right completely. Even if the Second Amendment were incorporated to the states, that Chicago prevents handguns but allows long-guns means that substantive due process is not being violated, so he argues, because the regulation is reasonable and the rights are not totally abrogated.

The inherent tension between the arguments is that both sides are arguing over whether the 2d Amendment should be incorporated AND, assuming it is, which new test to employ for the right to keep and bear arms. There’s no reason why the Court would necessarily choose one of the previous tests over the others except that it will go through a policy-based analysis to determine a method to evaluate whether substantive due process is violated.

If Chicago gets its way, then a reasonableness (rational basis review) test, which is highly deferential, might be employed, allowing them to win the day in spite of incorporation. There’s at least a colorable argument that the allowance of possession of long guns is sufficient to not run afoul of a putative reasonableness requirement of substantive due process as applied to guns.

If Gura gets his way for McDonald, I’m sure keeping and bearing arms would be subject to strict scrutiny, effectively ending any regulation (save federal) of guns at all.

Somehow, I think the Court will use an intermediate test or come up with a new type of intermediate test so as to ensure that the right to keep and bear arms is allowed, but yet will still allow for regulation.

That is why Privileges or Immunities, while a long shot, would have been a winner. Getting the right to keep and bear arms classified as an immunity would have given stronger federal protection to the right. Instead, the fighting will predominantly be about what type of scrutiny federal courts will be allowed to have over states that are abridging the right and how much regulation they can implement without running afoul of Substantive Due Process.

If you can keep your head when all about you
Are losing theirs and blaming it on you;
If you can trust yourself when all men doubt you,
But make allowance for their doubting too;
If you can wait and not be tired by waiting,
Or, being lied about, don’t deal in lies,
Or, being hated, don’t give way to hating,
And yet don’t look too good, nor talk too wise;

If you can dream – and not make dreams your master;
If you can think – and not make thoughts your aim;
If you can meet with triumph and disaster
And treat those two imposters just the same;
If you can bear to hear the truth you’ve spoken
Twisted by knaves to make a trap for fools,
Or watch the things you gave your life to broken,
And stoop and build ’em up with wornout tools;

If you can make one heap of all your winnings
And risk it on one turn of pitch-and-toss,
And lose, and start again at your beginnings
And never breath a word about your loss;
If you can force your heart and nerve and sinew
To serve your turn long after they are gone,
And so hold on when there is nothing in you
Except the Will which says to them: “Hold on”;

If you can talk with crowds and keep your virtue,
Or walk with kings – nor lose the common touch;
If neither foes nor loving friends can hurt you;
If all men count with you, but none too much;
If you can fill the unforgiving minute
With sixty seconds’ worth of distance run –
Yours is the Earth and everything that’s in it,
And – which is more – you’ll be a Man my son!

]]>http://www.oshane.com/2010/02/if/feed/1The Best Offerhttp://www.oshane.com/2010/01/the-best-offer/
http://www.oshane.com/2010/01/the-best-offer/#commentsThu, 28 Jan 2010 03:24:03 +0000http://www.oshane.com/wp/?p=199I liked eBay’s Best Offer feature when it came out. Best Offer is a way for buyers to offer a lower price on a sale that employs on a fixed price auction, where the seller sets his own price for the item’s listing. Best Offer provides a way for buyers and sellers to negotiate and exchange information in a way that neither may want to do publicly. The seller can then counteroffer a lower price to the buyer without ruining his profit opportunity if he has multiple items. The buyer can suggest that the seller’s price is too high given prevailing auction trends and the seller can tell the buyer that his cost is X with the eBay and PayPal fees, so the lowest he can go is X + Y.

They can also, frankly, communicate with one another about the deal in spite of eBay’s draconian prohibitions or restrictions on buyer-seller communication otherwise.

But, like all eBay features, the usability comes with a crippling price. While the Best Offer does likely promote more sales, thereby generating happiness and revenue for the sellers, buyers and eBay, it also cripples the ability for sellers and buyers to efficiently revoke those offers and counteroffers before acceptance has occurred. In fact, once an offer (counteroffer) is made, the offeror cannot revoke his own offer for 48 hours. At that point, the offer necessarily expires anyway. So, on one hand, if the offeror decides that his stated price is incorrect (either too high or too low), he can’t change it. What if the buyer offers a price that he would like to raise to entice a faster sale? What if he realizes the price he offered is too high? eBay does make exceptions for obvious mistakes (offering $999 instead of $99), but what if as part of the negotiation process, either party wants to change the offer before the currently offered price has been accepted? He can’t.

On the other hand, if the offeror decides that he would like to keep his price open for longer than 48 hours, because he would like to give the offeree a little more time to say yes, he can’t do that either.

I appreciate that eBay sets some sort of time limit on the offer, particularly since the offer is irrevocable until expiration, but why not allow the offeror a default expiration and allow him to change that while also allowing him to revoke the offer at any time before acceptance?

Fundamental contract law provides that the offeror can revoke his offer any time before the offeree accepts the offer, but once the offer is accepted, there is a binding contract (assuming there is an exchange on both sides, i.e. money for an item, bartering, etc.). eBay flouts the first part of this basic notion by preventing either party from revoking his own offer and by forcing the expiration at a certain time.

In a way, eBay is importing its notions (legal and philosophical) regarding auctions to fixed price sales. For instance, legally, once a bidder bids in a bona fide auction, assuming there is no minimum price that must be attained before the seller is obligated to sell, the seller is legally and ethically bound to sell to that bidder until a higher one comes along, so on and so forth until the highest bidder has won the auction. From a contract theory perspective, the offeror has impliedly stated, “I will sell this item to whomever of you bids the highest.” As soon as there is a bid, the offeror has had his offer accepted. It is the offeree (now the acceptor) who can have his own acceptance superseded by another offeree. But the offeror (seller) is bound by his words which have been agreed to.

With a fixed price auction, the same rules need not apply, because the seller is offering one price. If a buyer comes along and counteroffers another price, why should the buyer be locked into that counteroffer? He’s not auctioning something. Whether or not another buyer can counteroffer something better is immaterial. The offer itself in a fixed price sale, just like the ones you find whenever you walk into a retail store, is inherently different from an auction, which relies on the binding of the seller and the competition between buyers. In a typical fixed price sale, there may certainly be competition between buyers for a limited number of items, but the offeror has not bound himself to selling to the highest bidder.

Nevertheless, eBay transmogrifies a fixed price sale into something that acts like an auction, for no reason other than it establishes control for eBay. Maybe it was easier to program the software to handle the transaction, but in any case, it is a suboptimal solution. If the buyer and seller aren’t free to walk away from the sale, then it is harmful to the marketplace.

What if the buyer finds the same or substantially similar item from a different buyer, as is often the case on eBay? Why shouldn’t he be able to cancel his offer to purchase at a lower price – so long as the seller has not accepted it yet – so that he can find a better price elsewhere? Why shouldn’t the seller be able to cancel the counteroffer to sell at a particular price – so long as the buyer has not accepted it yet – so that he may find a more willing buyer? In the case of small inventories, perhaps the seller was is to sell the item locally in person to someone else and wants to cancel the offer.

In either case, from a philosophical standpoint, eBay is choosing to restrict the freedom of the parties to choose how they enter into contracts. From a practical perspective, eBay is actually harming commerce, because if either party wants to revoke his offer, he usually has a good economic reason to do so, whether it comes down to a better deal elsewhere or the buyer’s realization that he doesn’t want to take this product or a situation where the seller can sell the item to someone locally. In all these cases, the better opportunities (the bird in the hand) may evaporate before the offer expires or the other person chooses to reject it; eBay is requiring the conversation to go on longer than either party would like, perhaps for so-called reasons of fairness (2 birds in the bush).

eBay places more obligations on both parties than the law would, for reasons that are unclear to me. I’m not suggesting that eBay cannot contract with its users as the marketplace to set and enforce certain rules about the way contracts/purchases/auctions are to be conducted on their own website (property). I’m suggesting that what it is doing is inefficient and not the correct or optimal way to conduct a fixed price “auction” or sale. I’m also not stating that eBay should allow shill counteroffers from the seller so that he makes offers that he cannot possibly fulfill: if eBay wants to restrict a seller selling three items to only have three extant counteroffers on the table with three buyers at any one time, that’s reasonable: it fulfills the expectations of reasonable buyers and prevents eBay from suffering a bad reputation by sellers who are acting in a way that will guarantee they violate contracts. But the seller should be able to revoke one of those counteroffers to sell one of his items to a new buyer if it makes economic sense.

Currently I have two items for sale that are locked in a counteroffer black hole since the buyers have not rejected them yet and 48 hours have not expired. It turns out I would like to give one of those items away to a loved one, but I cannot, because to do so would be to possibly violate a contract that may get formed by the buyer (counter-offeree) if he chooses to accept my counteroffer before expiration. So, now I’m stuck not able to give the item away as I would like, because eBay will not allow me to revoke the counteroffer as the law would.

To be clear, assuming that I could revoke these Best Offers, but assuming I had not, if a buyer had accepted one, a contract would be in place. I would honor the contract. But now eBay is forcing me, if I want to use their system (which is one of the few ways I can expand my market beyond my small town), to keep an offer open longer than is economically efficient or optimal.

]]>http://www.oshane.com/2010/01/the-best-offer/feed/6Skribithttp://www.oshane.com/2010/01/skribit/
http://www.oshane.com/2010/01/skribit/#commentsFri, 22 Jan 2010 04:34:25 +0000http://www.oshane.com/wp/?p=196Skribit is a cute little app (see the right side of this blog page) that allows your readers to suggest topics for posts. If you have an audience large enough, the suggestions can be very worthwhile, because they allow you to keep your pulse on what your readers may want you to opine about.

Plus, the founders are cool guys; I’ve corresponded with one of them, Paul Stamatiou, once, and he struck me as bright, helpful and very down-to-earth, yet enthusiastic.

Laypersons may not understand how significant this is. Currently, unless a legal researcher (lawyer) is using public resources, which have not been easily organized or easily searchable until now, he must rely on licenses to services provided by Westlaw and LexisNexis, which are extraordinarily expensive.

I foresee Westlaw and LexisNexis continuing to provide value to cases with analysis and connective organization, but for general purpose legal research, they are being disintermediated, and it’s about time.

This new feature of Google Scholar will allow legal research to proceed more efficiently, more inexpensively, and makes the common law, most importantly, more accessible to the public by taking it out of the hands of the guild guardians and putting it into the hands of anyone who needs to see the common law.

This gives me great pride. Kudos to the knowledge workers outside of Google who helped the engineers create this search function. Kudos to the engineers. Kudos to Larry & Sergey and all Googlers, who continue to gather the world’s information and make it universally accessible and useful.

]]>http://www.oshane.com/2009/11/googles-tectonic-shift-in-legal-research/feed/418-Year Scotch Chocolate Milkshakehttp://www.oshane.com/2009/11/18-year-scotch-chocolate-milkshake/
http://www.oshane.com/2009/11/18-year-scotch-chocolate-milkshake/#commentsTue, 17 Nov 2009 06:50:59 +0000http://www.oshane.com/wp/?p=190Someone somewhere undoubtedly has already made this recipe.Â But it came to me out of the blue this evening, and I enjoyed it very much:

3 large scoops of chocolate ice cream
1 cup of milk, give or take
1 very heaping teaspoon of Ghirardelli cocoa powder
1-2 shots of 18 year scotch (I prefer Glenlivet), to taste*

*The key is not to overpower the milkshake but to accent it.

Blend.
Serves 1-2 people.

]]>http://www.oshane.com/2009/11/18-year-scotch-chocolate-milkshake/feed/2A Long Response to a Short Tweet About Obama’s Speech to Schoolchildrenhttp://www.oshane.com/2009/09/obamas-speech-to-schoolchildren/
http://www.oshane.com/2009/09/obamas-speech-to-schoolchildren/#commentsWed, 09 Sep 2009 03:39:46 +0000http://www.oshane.com/wp/?p=180My brother posted a tweet on Twitter, which I reproduce below.Â My response to him required more than one or several tweets, so I emailed him.Â He suggested I blog this.Â I have edited it slightly, because the email had no prior proofreading.

For context: I, myself, succeeded greatly in public schools.Â I graduated high school summa cum laude with a perfect 4.0 cumulative average and maybe received one B in middle school and one S- in first grade.Â Other than that, my grades and behavior were exemplary.

From your tweet:Obama speechgate is so stupid! Have you read the transcript?! http://digg.com/d313S7T How is advocating personal responsibility socialist?!

Allow me to give you a few quotations from Obama’s speech (per the transcript) and respond to them in-line.Â Quotations are indented1.Â My commentary is not.

I will demonstrate that it is socialism par excellence and that it would be so if a Republican were making the speech too.

Iâ€™ve talked a lot about your governmentâ€™s responsibility for setting high standards, supporting teachers and principals, and turning around schools that arenâ€™t working where students arenâ€™t getting the opportunities they deserve.

Why does the government have responsibility for education at all?Â One can only assume it does or should if one believes a) that government should create laws to compel children to school and do so at the implied point of a gun and b) that government should take your money (or someone’s money) to pay for it.

But at the end of the day, we can have the most dedicated teachers, the most supportive parents, and the best schools in the world â€“ and none of it will matter unless all of you fulfill your responsibilities.Â Unless you show up to those schools; pay attention to those teachers; listen to your parents, grandparents and other adults; and put in the hard work it takes to succeed.

And thatâ€™s what I want to focus on today: the responsibility each of you has for your education.Â I want to start with the responsibility you have to yourself.

Clearly assumed in this statement is that government mandated education is not only the responsibility of the other agents listed, but also the responsibility of the student.Â That is, he is persuading his audience to be willing and active participants in a system in which they largely have no or little choice.Â They are required to attend upon penalty of punishment, so he is also advocating they attend cheerfully and good faith.Â True, they will not “succeed” at education, by whatever standards he or public school administrators define success, if they do not put in the effort, but that is not the issue.Â At issue is whether the speech is socialist, and the mere fact that the federal government is involved at all in education is a form of socialism to some degree.Â That Obama is taking time out of his busy presidential schedule to reinforce his views that public school is an unmitigated good for which students should care and tend reinforces his own belief in socialism.

Every single one of you has something youâ€™re good at.Â Every single one of you has something to offer.Â And you have a responsibility to yourself to discover what that is.Â Thatâ€™s the opportunity an education can provide.
. . .
And no matter what you want to do with your life â€“ I guarantee that youâ€™ll need an education to do it.

President Obama is impliedly conflating the word education in these facially arguably true statements with public education.

What youâ€™re learning in school today will determine whether we as a nation can meet our greatest challenges in the future.

This is a patent falsity, but good propaganda.Â Does he really think that the so-called greatest challenges can be met by what an 8th grader learned on his first day of middle school, or rather, that they will be outcome-determinative for the nation?Â No, but it is excellent advertising for public schooling.

Youâ€™ll need the knowledge and problem-solving skills you learn in science and math to cure diseases like cancer and AIDS, and to develop new energy technologies and protect our environment.Â Youâ€™ll need the insights and critical thinking skills you gain in history and social studies to fight poverty and homelessness, crime and discrimination, and make our nation more fair and more free.Â Youâ€™ll need the creativity and ingenuity you develop in all your classes to build new companies that will create new jobs and boost our economy.

My bemusement at the juxtaposition of “critical thinking skills” and social studies and the implied meta-theory that the highest form of thought lies in the social sciences rather than in something more fundamentally logical, i.e., mathematics, aside, it is socialist to consider poverty to be the first ill to be fought and to conflate crime and discrimination.Â Discrimination is not (or should not be) criminal.Â Discrimination is an ugly form of treatment that is uncontrollable in a so-called free society except by peer pressure.Â Obama is using the bully pulpit to exert pressure, but criminalizing speech and most forms of behavior tends toward socialism as practiced for a century all over the world – in a way that strips people of freedom.

We need every single one of you to develop your talents, skills and intellect so you can help solve our most difficult problems.Â If you donâ€™t do that â€“ if you quit on school â€“ youâ€™re not just quitting on yourself, youâ€™re quitting on your country.

An honest subordinate clausal ending of the sentence would have stated, “because if you are all not productive, then we will have a smaller bounty of gross national product to tax.”

But at the end of the day, the circumstances of your life â€“ what you look like, where you come from, how much money you have, what youâ€™ve got going on at home â€“ thatâ€™s no excuse for neglecting your homework or having a bad attitude.

Why not?Â Why should family problems not take paramount precedence over schoolwork?Â He is essentially stating that the fealty of the student to the government institution comes first.Â He couches it in the form of the student helping himself, but again, the student effectively has no choice to participate, so it’s a false statement commending the audience to pride their work.

Thatâ€™s why today, Iâ€™m calling on each of you to set your own goals for your education â€“ and to do everything you can to meet them.Â Your goal can be something as simple as doing all your homework, paying attention in class, or spending time each day reading a book.Â Maybe youâ€™ll decide to get involved in an extracurricular activity, or volunteer in your community.

Why does community volunteerism have anything to do with school or education in the hard subjects proper?Â More propaganda. In fact, the mere fact that government is positively moralizing certain kinds of behavior (beyond negatively moralizing against violent behavior, usually in the form of a basic criminal law), demonstrates a belief that government’s role is to paternalize and moralize to people. That is also part of socialism.

If you get in trouble, that doesnâ€™t mean youâ€™re a troublemaker, it means you need to try harder to behave.Â If you get a bad grade, that doesnâ€™t mean youâ€™re stupid, it just means you need to spend more time studying.

Or it means that you realize at the core of your being that school is a form of prison and you are rebelling.Â Or it means that school is ineffective at teaching, because its mesmerizing commands and structure have sucked the joy out of learning for you.

Itâ€™s the story of students who sat where you sit 250 years ago, and went on to wage a revolution and found this nation.

Actually, no.Â Now President Obama is farcically rewriting history.Â Most of the founding fathers were entirely privately or self-educated.Â They learned by reading on their own time; they, mostly, came from moneyed families and learned at their leisure.Â George Washington stated, “I am a soldier so that my son can be a farmer so that his son can be a philosopher.”Â Washington recognized that a) education and success required an environment where the equality of man was recognized (not in a British peerage system) and b) that the highest forms of thinking required the productivity of past generations to enable it — that it wasn’t automatic for everyone.Â The founding fathers did not, as a whole, sit in schools taught with a large cohort of age-peers in the same grinding manner.

Furthermore, they waged a revolution, because the people were totally fed up with the British system of searches for contraband, which required no warrant, and with the imposition of high taxes by a Crown in a faraway land.Â How much were “high” taxes?Â The Sugar Act prescribed a 3% tax on each gallon of sugar.Â Its follow-up Stamp Act required about as much to file paperwork.Â 3%.Â What do we pay in taxes now?Â Our founding fathers fought a revolution for freedom from taxes that were up to 18 times less than what we pay now (in some instances).

So today, I want to ask you, whatâ€™s your contribution going to be?

To contribute, one must have an object.Â To whom should the students contribute?Â Society?Â The government?Â How about to themselves, for themselves and for their families?Â No, clearly the implication is a far greater number of worthy beneficiaries than just one’s own family, which smacks of socialism.

Iâ€™m working hard to fix up your classrooms and get you the books, equipment and computers you need to learn.

“I am continuing to enforce taxation regulations, i.e. the taking of assets, money and property at the implied point of a gun and prison, to ensure that money is expropriated from the haves to give to you children, the have-nots, in order for you to learn in this government-controlled environment.”

Socialism.

Never mind the fact that one of the ten pillars of communism is compulsory public education for children.

1 In the original email, I italicized, and such was this word. I chose to indent on the web for readability
]]>http://www.oshane.com/2009/09/obamas-speech-to-schoolchildren/feed/3Some Winged Creaturehttp://www.oshane.com/2009/08/some-winged-creature/
http://www.oshane.com/2009/08/some-winged-creature/#respondTue, 25 Aug 2009 02:58:59 +0000http://www.oshane.com/wp/?p=169

Even in your thoughts,do not curse the king,
nor in yourbedroom curse the rich,
for a bird of the air will carry your voice,
or some winged creature tell the matter.Â¢

A friend of mine, Jonathan HaskinsÂ£, was a mid-level director at a former company in Silicon Valley for whom I briefly worked.Â He and I had an excellent rapport, and I am sad we did not have the opportunity to work together longer, because he was an excellent mentor to a small cadre of us and a talented manager.Â He was/is a bright, witty, caring individual with a sense for what matters and what doesn’t.Â He is quick to focus on getting things done optimally without getting mired by the unimportant.Â He is a good leader and was a truly excellent manager.Â He was also a snappy dresser and very gregarious.

There were some peers of mine who did not like Jonathan.Â I was never sure why (jealousy?), but they took to gossiping about him in such a way that a malicious rumor spread quickly about his personal predilections.Â He was such a talented leader, than it did not overtly affect the manner in which he managed or interacted with the executive management team, but the harshness of the rumors affected him deeply.

Jonathan was going through some difficult relational problems at the time and had moved to our company to get away from an old position that had, after many years, lost its lustre and was no longer as fulfilling.Â In a sense, he was trying to make a new start in life and in his career, and then the rumors struck him as a meteor strikes a planet.

Strangely, some of Jonathan’s managers (higher-ups) began to, wrongly, question whether these rumors were affecting his ability to perform his job.Â They didn’t – he was eminentlyÂ professional throughout this ordeal.Â Bottom line: he did himself a favor, resigned, and left for another, better company.

I found out later one of those peers of mine, Dorian, who mongered rumors about Jonathan applied for a senior level product management position at another high tech company.Â He was, on paper, potentially qualified for the job.Â His problem was that Jonathan is exceptionally well-connected.

Jonathan counts among friends several venture capitalists and other rainmakers.Â He is also well-qualified technically, writes excellent code, and has the respect of software engineers and engineering directors all around the Valley.

When Dorian applied for the product management position, the vice president of product management at the new company where Dorian wanted to work called Jonathan and said, “Hey, you worked for Dorian’s company for awhile.Â What do you think of him?”Â Jonathan told the vice president truthfully that he found Dorian to be unprofessional and not precisely competent.

Such ended Dorian’s application.

We have a saying in the Valley: don’t burn bridges, because the Valley is too small.Â In other words, some winged creature, such as Jonathan Haskins, may tell the matter to the vice president of product management.

Â¢Ecclesiastes 10:20, English Standard Version.Â£Name has been changed to protect the innocent.Â Any similarity this story has to a protagonist named Jonathan Haskins is purely coincidental.â‚¬Name has been changed to protect the guilty.

The so-called “public” and its grand protector, the SEC, have no morally sufficient argument to demand that a person, even a CEO, explain to them that he is receiving a transplant. Â It is a complex, extremely frightening, private affair.

An argument for materiality undercuts our cultural notions of privacy. Â Jobs did the right thing by stepping down as CEO for the time he was waiting for and receiving the transplant. Â The market correctly priced the uncertainty of his return at that point, and the discussion should end there.

Investors who cry out “Materiality! Â Materiality!” are just upset they didn’t have the chance to put or call the stock more lucratively. Â Get over it.

]]>http://www.oshane.com/2009/06/steve-jobs-transplant/feed/0DiLorenzo’s Four Laws of Governmenthttp://www.oshane.com/2009/06/four-laws-of-government/
http://www.oshane.com/2009/06/four-laws-of-government/#respondSun, 21 Jun 2009 00:52:10 +0000http://www.oshane.com/wp/?p=158Read this piece by Thomas DiLorenzo. It expands on the following:

In government, failure is success. Thatâ€™s what I call DiLorenzoâ€™s First Law of Government.

. . .

DiLorenzoâ€™s Second Law of Government is that politicians will never assume responsibility for any of the problems that they cause.

. . .

DiLorenzoâ€™s Third Law of Government is that, with one or two exceptions, all politicians are habitual liars.

. . .

DiLorenzoâ€™s Fourth Law of Government is that politicians will only take the advice of their legions of academic advisors if it promises to increase their power, wealth, and influence, even if they know the advice is bad (or even devastating) for the rest of society.

For more than several years, I have been a fan of Hamachi, which provides a proprietary but zero-configuration VPN solution for any Windows user. Unfortunately, while there are Hamachi builds for Linux and OS X, they are command-line interfaces only (meaning, of course, the so-called Mac OS X build should work flawlessly in Unix).

A Quick Overview of Hamachi
Once installed, Hamachi connects to the central server, which generates a new Hamachi IP address. Via this “tunneled” IP address, one can create and join networks, which are created with text names and secured by passwords. When using Hamachi for the first time, the UI will guide the user through joining the “test” network with the password “secret”. Anyone else connected to a network is now on a virtual LAN with the user via that network.

Your own computer remains as secure as it would versus anyone else on a physical network but can now interface with co-users of Hamachi as though you were on the same physical network. Bottom line: no fussing with port triggering in your router to ensure your application will work with another user somewhere on the internet.

For Windows users, this process is fairly easy and requires little technical understanding.

The OS X Version Truly is Rudimentary
For basic VPN tunneling, the OS X (unix) version is adequate and not terribly complicated for someone used to a command line interface. The problem for non-novice users is really that its feature set is pretty “rudimentary” to quote the language on the Hamachi website.

One feature that is lacking is the ability to receive system messages from the central server and respond to them using a GUI (or even a textual command). Moreover, there is no way to set a “master password” in the OS X version as one can do in the Windows version.

These are actually important, because Hamachi provides, at http://my.hamachi.cc, a method for consolidating control of all accounts in a web-based interface. If you have multiple computers and multiple Hamachi accounts, this interface allows you to set which account controls a network, to evict other users of networks you own, and so on. Also, if you have set the master password to an old account which you no longer have (the classic scenario is loss due to a computer crash), then you can also “move” the RSA keys and identity of the old account to a current account. This option isn’t available in the Mac OS X command-line interface. Nor does it seem to be available to users of the third-party unofficial GUI, HamachiX.

A Solution to One Problem
Today, I discovered how, at least, to be able to register an OS X version with one’s My Hamachi web account. It requires a Windows machine, a functioning, installed OS X version, and for ease, a network storage device (or external drive).

Backing Your Hamachi Installation Up
Fortunately, backing Hamachi up is as simple as copying key folders to a safe place and then restoring (recopying) them back to their original places after reinstalling Hamachi but before connecting into the central server for the first time. Fortunately, in the OS X version, it takes a proactive command to logon post-install, so you are likely not in danger of screwing this up in OS X. Unfortunately, in the Windows version, there is a checkbox that is opt-out at the end of the installation which asks the user to start Hamachi after the installation finishes. This needs to be unchecked if you are reinstalling Hamachi and planning to restore an old account.Î±

In the OS X version, there is a hidden folder for Hamachi, once installed, that holds the private RSA key and public RSA keys the client needs to securely connect with other clients. To access hidden files and folders in Finder, you need to run this command in a Terminal:

Copy the .hamachi folder to a safe place on your network. If your aim is to merely backup your Hamachi IP address and installation, this is sufficient. Just make sure to copy your .hamachi folder back to the same place after you reinstall. Coincidentally, this process is very similar for Windows XP and Windows Vista / 7 users:

In Windows XP: copy the contents ofC:\Documents and Settings\oshanereader\Application Data\Hamachi to a safe place.

In Windows Vista or Windows 7: copy the contents ofC:\Users\oshanereader\AppData\Roaming\Hamachi to a safe place.

Note that these folders are also hidden and require unhiding them in the Windows Explorer interface.

Tricking Hamachi by Cloning the OS X Installation on Windows
For the purposes, however, of connecting your OS X Hamachi IP to your My Hamachi account, you have to actually install Hamachi onto Windows and trick it into thinking it is the same account on your OS X machine. Since Hamachi, when it first installs, generates a Hamachi IP address, a private client RSA cryptographic key and conforming public keys (if you have connected with other people in other networks), because those items conform to one another, they must all be present in a restoration for Hamachi to believe that it is being restored to the original machine, i.e., to clone the original installation. If any one of these items is defective or malformed, Hamachi will believe it should create a new IP address and new private-public RSA key pairings. This is really for security. It would be terrible for a secure VPN application to simply believe that an account is the same as an old one with only one “piece of identification.”

Anyway, the Mac OS X files are similar but not the same as the Windows files. In OS X, under /.hamachi/, these are the files that matter:

client.pri
client.pub

There is also an important file for reference purposes but is not essential to this workaround: a file called state which lists the identity-IP address, current nickname and current networks of the Hamachi installation.

In Windows, there is an additional file key file similar to OS X’s state:

client.id

To trick Hamachi on Windows into thinking it is the OS X installation, first ensure that Hamachi is uninstalled on Windows and that the folders, supra, are either fully deleted or empty. (Re)install Hamachi on Windows. Copy the files client.pri and client.pub from the Mac to the appropriate Windows folder, where there should only be one file, hamachi.ini, which has almost no content and you can ignore (I mention it for reference). You’re not finished.

Then, create a file using Notepad or some other method called client.id in the appropriate Windows folder next to the other client files. Whereas client.pub and client.pri are encrypted, this one is plainttext. Add this one line to your file:

Identity 05xxxxxx

where the “xxxxxx” are not actually x’s, but the hexadecimal equivalents of the IP address’ octets. The first octet in a Hamachi address is always 5. For instance: 5.5.255.255. If 5.5.255.255 were your Mac OS X Hamachi IP address, then you would convert each octet (the number between the periods) separately. 5 in base 10 is 05 in base-16 (hexadecimal). 255 in base 10 is ff in base-16. Thus, your address would convert to 05.05.ff.ff, but for the purposes of manipulating the client.id file, we remove the periods:

Identity 0505ffff

Another example, using an old Hamachi IP address I have since lost the files for, would be 5.43.79.251. If that were your address on your Mac OS X installation, it would convert to 05 2b 4f fb or, in the only line of client.id, you would type:

Identity 052b4ffb

Once you have created a client.id file tied to the identity (IP address) of your OS X Hamachi account, it should conform to the files you copied from your Mac OS X Hamachi installation client.pri and client.pub. Now, make sure your OS X Hamachi is turned off and load Hamachi on the Windows installation and logon to the internet. It should register with all of your networks from the Mac OS X installation using the same IP address.

Registering Your OS X Hamachi Client at My Hamachi
At http://my.hamachi.cc, assuming you have registered for an account, click on the Requests tab and in that tab, Add new client. Under the Request Form section, add the IP address of your Hamachi OS X installation (now cloned on your Windows machine).

Once you initiate this request, your Hamachi UI in Windows will blink in the system tray, alerting you to a new system message. Click on the blinking 3-dot triangular symbol and grant access via the pop-up window that appears. Once you’ve done this, your web account will now have “attached” your OS X Hamachi installation.

Setting the Master Password
Feel free to set the master password for the OS X Hamachi account via the Windows clone. To do so, click on the gear-button in the lower-right corner of the Hamachi GUI and select preferences from the menu. Under the System sub-menu, click on Set Master Password. In fact, feel free to browse through the sub-menus, because some of these preferences will not be able to be set under the OS X command line interface so if you’d like them changed, feel free to do so. Assuming you uninstall the Windows clone, however, note that these changes will be semi-permanent unless you were to reclone the OS X installation on Windows again.

Setting the master password at this point should be unnecessary. Doing so allows one to preserve ownership even after a Hamachi installation is lost with no backup. Since you, by nature of cloning the OS X installation in Windows, have backed up the /.hamachi/ folder, a master password is probably moot. Still, if you were to lose your Hamachi installation and the backup, the master password would allow you to preserve your networks and ownership of any networks you created and then merge those memberships and ownerships into a new account, so it’s worthwhile creating a master password, though perhaps not for the immediate future.

Wrapping Things Up
Finally, uninstall the Windows clone of your OS X Hamachi installation. This way, you protect it from suffering a race condition by confusing the Hamachi central server.

Î± A saving grace: if you mess this up, fixing it is just a matter of deleting the appropriate folder in its entirety and uninstalling Hamachi and starting over.Î² To turn off the visually unappealing attribute when finished, just employ the inverse command: defaults write com.apple.Finder AppleShowAllFiles FALSE.
]]>http://www.oshane.com/2009/06/hamachi-workarounds-in-os-x/feed/2An Unnecessary Oathhttp://www.oshane.com/2009/06/an-unnecessary-oath/
http://www.oshane.com/2009/06/an-unnecessary-oath/#respondThu, 04 Jun 2009 05:39:49 +0000http://www.oshane.com/wp/?p=95The predicate article, here, speaks to a student-led initiative at Harvard Business School (HBS) to create an oath for its profession of management and garner voluntary buy-in for it.

The Columbia Code
According to the article, Columbia has employed an honor code of its own for several years now, and ironically, the piece quotes the Columbia code in full while merely linking to the Harvard student-driven oath, perhaps because the Columbia code is short and pithy. I like it:

As a lifelong member of the Columbia Business School community, I adhere to the principles of truth, integrity, and respect. I will not lie, cheat, steal, or tolerate those who do.

It is short and highly discretionary, and it expresses paragons of sound moral ideals.

Misery & Discord
Meanwhile, the Harvard student-led oath provides an exercise in patience to the reader as it drones on. In comparison to the Hippocratic oath or even the oaths at the bar that lawyers take, this one is somewhat vapid in its length (although the others on which it is presumably modeled in form are long, too).

One need for the use of oaths for professions such as medicine and law is that they, as industries, require misery and destruction to function. They are useful, as much as a device for bailing water or a life-raft is useful when one’s boat is sinking, but they do not generally add value so much as they, if the actors are good ones, preserve it. Of course, I do recognize that most doctors’ functions are like life rafts of some kind, whereas lawyers can serve as the life-raft or the sea-mine destroying the boat in the first place (such is the nature of the adversarial system).

Business Is Supposed to Create Value
Don’t get me wrong: many lawyers in their own misguided attempts to preserve (or even create) value, actually destroy it, because their own livelihoods and incentives usually rely on disagreements and conflict, which are necessarily value-destructive. The livelihoods of doctors are also fundamentally based in misery. Yet, business in general promotes increases in standards of living through innovation buoyed by an organic system that cyclically favors profitable endeavors but prunes the unprofitable. Zillions of actors independently negotiate within their ambits to maximize and optimize for this profitability, which is simply an accumulation of fungible resources iteratively expended to create new innovations and to ease pain and problems.

Business, as its core function, is supposed to create value. People pay to see greater value, to offset their own costs with greater benefits. When a business ceases to keep in mind that its purpose is to create value for its customers such that its revenue exceeds its costs, either its customers leave it and it fails or it fails due to cost constraints. Well, businesses succeed and fail in this manner as long as government does not falsely prop them up . . .

Oaths Provide a Check Against Amoral Incentives
So oaths, as they are, provide a check on the natural amoral incentives that would otherwise exist in industries whose substrate is misery so that the professionals taking the oaths do not allow those amoral incentives to be the primary impetus for their actions. Because the attorney’s livelihood exists only because of misery and discord, if the only constraint on his actions was his own creativity, then would he not seek to create legal misery in order to improve his revenue were it not for his own moral standards supported or circumscribed by the ideals inherent in his oath? Similarly, is not the evil doctor in stories always the one who supplants the common standards of the Hippocratic Oath in order to advance his own agenda in spite of the needs of his patients (experimental subjects)?

Is the student body at HBS admitting, thus, that the industry of professional managers rests upon a foundation of misery or that the incentives of its practitioners rests on activities that are, in some way, net value-destructive or both?

Oaths Provide a Check Against Negligent Actions That Have Great Consequences
The other scenario in which an industry of professionals may need an oath as a check against its amoral incentives is when the industry and its practitioners have the overwhelming power to materially alter the outcome of an enterprise or have so much control over the client’s position that the oath serves as a reminder to the practitioner to make judicious decisions assuming that he is acting in good faith anyway. That is to say, a doctor’s choices could kill the patient and the lawyer’s choices could ruin the legal case even if they are acting with the best of intentions, i.e., without malice. In short, they possess a lot of power.

Many professional managers, especially the ones who graduate from HBS and its ilk, often do possess a great deal of power. Top medium to large businesses hire them to take roles with high responsibility or high stakes or both. To that end, perhaps an oath is in order. Why, however, did the HBS student-initiative go beyond the pithy Columbia honor code, which seems sufficient to cover everything inherent in management?

A Deconstruction of Harvard’s Oath
The preamble, analogous to contractual recitals, begins:

As a manager, my purpose is to serve the greater good by bringing people and resources together to create value that no single individual can build alone. Therefore I will seek a course that enhances the value my enterprise can create for society over the long term. I recognize my decisions can have far-reaching consequences that affect the well-being of individuals inside and outside my enterprise, today and in the future. As I reconcile the interests of different constituencies, I will face difficult choices.

The irony begins in the first sentence. The nature of the free market, presuming the oath-taker is involved in the free market, is that pursuit of self-interest will serve the greater good in aggregate, assuming no theft. Lying and cheating tend to effect theft, so the aggregate good requires actors not lie or cheat either. Society, as an aggregation of consumers, will determine what is beneficial to it over the long term by buying what is offered by a business or not. Thus, to fulfill the first portion of the preamble, the oath-taker merely needs to engage in profitable business without lying, cheating or stealing. Beyond promising not to do any of those immoral acts, does a businessperson need to take a solemn oath to commit to engaging in profitable enterprise?

The last sentence is especially devoid of meaning. Life is filled with difficult choices. Perhaps if it served as the predicate clause to a statement of action, it would be useful, but to merely recognize that one will have difficult choices is similar to stating that the sun will rise and set.

The first promise states:

I will act with utmost integrity and pursue my work in an ethical manner. My personal behavior will be an example of integrity, consistent with the values I publicly espouse.

On its own, this statement, while somewhat nebulous, is good. It does not state the tenor of the oath-taker’s voluntary duty as incisively as the Columbia Honor Code, but it says enough.

The second promise states:

I will safeguard the interests of my shareholders, co-workers, customers, and the society in which we operate. I will endeavor to protect the interests of those who may not have power, but whose well-being is contingent on my decisions.

While this statement seems edifying, it is in toto unnecessary or nonsensical. Employees of a company, from the CEO down to the lowest worker, owe a fiduciary duty to the company and its owners. Safeguarding the interests of customers at large is vital to the success of a business, so taking an oath to do so seems to be stating, simply, that the oath-taker will attempt to run a profitable business. If the end result is that companies where HBS-graduates have influence turn out to behave more like American Express, Southwest Airlines, Google and the like, i.e., are customer-driven, then that is a net-positive. Still, it seems unnecessary.

Safeguarding the interests of co-workers is an overly broad promise, and as such, incoherent. Certainly, if the oath purports to constrain the oath-taker from cheating, lying to or stealing from coworkers, then it is meant well. On the other hand, the Columbia Honor Code would have been sufficient for this meaning. But, not all interests of all coworkers are actually beneficial or in the best interest of the company and shareholders. When the co-worker has illicit or immoral interests, safeguarding them is also immoral. Surely the oath does not purport to mandate the safeguarding of all interests of co-workers, which makes it overinclusive.

Safeguarding the interests of society is a meaningless construction. Society, with respect to a business, is the superset of all customers. Otherwise, it acts as a political strawman erected by others to praise or a company even when its actions are unhelpful to its customers or lambast the company even when its actions are helpful, profitable and legal. As stated, it is also an overinclusive label, and therefore one lacking in meaning. If the oath purports to constrain the manager to safeguard the property interests of his neighbors, then the law already provides both an obligation and multiple remedies to violation of such interests, and an oath not to steal would suffice.

The third promise states:

I will manage my enterprise in good faith, guarding against decisions and behavior that advance my own narrow ambitions but harm the enterprise and the people it serves. The pursuit of self-interest is the vital engine of a capitalist economy, but unbridled greed can be just as harmful. I will oppose corruption, unfair discrimination, and exploitation.

This is redundant. If one is serving himself but harming his enterprise and its customers, he is violating his fiduciary duty to the company.

What is unfair discrimination? What is exploitation? Neither are useful as labels and strike this author as political demagoguery.

The fourth promise states:

I will understand and uphold, both in letter and in spirit, the laws and contracts governing my own conduct and that of my enterprise. If I find laws that are unjust, antiquated, or unhelpful I will not brazenly break, ignore or avoid them; I will seek civil and acceptable means of reforming them.

Promising to do business according to the law seems like a mere reiteration of a thousand years of Anglo-Saxon culture and jurisprudence.

The fifth promise states:

I will take responsibility for my actions, and I will represent the performance and risks of my enterprise accurately and honestly. My aim will not be to distort the truth, but to transparently explain it and help people understand how decisions that affect them are made.

This is an excellent promise and one that could be a sufficient oath by itself. The actions the oath-takers avow to do here are greatly lacking particularly in big business. This is a laudable clause.

The sixth promise states:

I will develop both myself and other managers under my supervision so that the profession continues to grow and contribute to the well-being of society. I will consult colleagues and others who can help inform my judgment and will continually invest in staying abreast of the evolving knowledge in the field, always remaining open to innovation. I will mentor and look after the education of the next generation of leaders.

A cynical recasting of this clause would state, “I will be a good manager and strive not to be irrelevant and unmarketable. I will donate to the alumni fund.” The well-being of society is conceptually amorphous and better served by managers who will continue their fiduciary duties to their companies to increase profits by serving customers well. The rest of the clause strikes as self-serving or wrapped up in an implied duty of good faith to remain competent enough to actually perform ones duties as a manager well.

The seventh promise states:

I will strive to create sustainable economic, social, and environmental prosperity worldwide. Sustainable prosperity is created when the enterprise produces an output in the long run that is greater than the opportunity cost of all the inputs it consumes.

When I first read the short version of the oath, I only saw the first sentence, which to me lacked definition or was reliant on current vapid political notions of sustainability or both. The second sentence, however, is actually an excellent definition of sustainability with respect to, well, anything.

This second sentence is actually outstanding and should be the hallmark of more businesses in this country. Many large public companies are run with the intention to increase profitability within the an epsilon of the next financial quarter, or even worse, with the purpose of buoying the stock price, that false indicator of profitability and financial health.

Social prosperity and environmental prosperity as concepts extra-contextual to economic prosperity are impossible to measure, because measurement requires the fungible units the economic market provides.

In fact the entire statement is totally unmeasurable, except with respect to a business’ own income statement. The amazing quality of the free market is that it is decentralized and does not require a top-level view of costs to all parties. Not only is such impossible, even measuring the external costs caused by a company’s actions is problematic. This is precisely why the market’s actors, working for their own interests, paradoxically increase value for all actors in aggregate.

The final promise states:

I will be accountable to my peers and they will be accountable to me for living by this oath. I recognize that my stature and privileges as a professional stem from the respect and trust that the profession as a whole enjoys, and I accept my responsibility for embodying, protecting, and developing the standards of the management profession, so as to enhance that trust and respect.

From a high level, professional oaths are unworkable without widespread acceptance and peer review. This is a good attempt to encourage both. Of course, the fiduciary duty to one’s company may require decisions unpopular with ones peers.

A Reconstruction
If I were to reconstruct a more cogent and meaningful oath for professional managers, this is how I would do it while preserving most of Harvard’s words:

I will act with utmost integrity and pursue my work in an ethical manner. My personal behavior will be an example of integrity, consistent with the values I publicly espouse. [I adhere to the principles of truth, integrity, and respect. I will not lie, cheat, steal, or tolerate those who do.]

I will safeguard the interests of my [company, its] shareholders and [our] customers. [I will adhere to my fiduciary duty to them and act at all times in good faith.]

I will take responsibility for my actions, and I will represent the performance and risks of my enterprise accurately and honestly. My aim will not be to distort the truth, but to transparently explain it and help people understand how decisions that affect them are made.

I will strive [to effect] output[s] in the long run that [are] greater than the opportunity cost of all the inputs [they] [consume].

I will be accountable to my peers and they will be accountable to me for living by this oath.

Caveats
This deconstruction is, by no means, an indictment of HBS graduates or of Harvard Business School. More than a few good friends and talented colleagues (like Hannah, Craig, Sheryl, Laura, and others) have had the privilege of graduating from HBS, have enjoyed illustrious careers and have done good work. I consider them friends or talented colleagues or both, precisely because they already embody the characteristics that the MBA Oath was attempting to purport.

My arrival (very recently) at philosophical anarchism has disturbed some of my conservative and Christian friends. In fact, it surprises me, going as it does against my own inclinations.

As a child I acquired a deep respect for authority and a horror of chaos. In my case the two things were blended by the uncertainty of my existence after my parents divorced and I bounced from one home to another for several years, often living with strangers. A stable authority was something I yearned for.

Meanwhile, my public-school education imbued me with the sort of patriotism encouraged in all children in those days. I grew up feeling that if there was one thing I could trust and rely on, it was my government. I knew it was strong and benign, even if I didnâ€™t know much else about it. The idea that some people â€” Communists, for example â€” might want to overthrow the government filled me with horror. . . .

]]>http://www.oshane.com/2009/06/the-reluctant-anarchist/feed/0Police Could Not Have Saved Binghamton Victimshttp://www.oshane.com/2009/04/police-could-not-have-saved-binghamton-victims/
http://www.oshane.com/2009/04/police-could-not-have-saved-binghamton-victims/#commentsMon, 06 Apr 2009 08:27:39 +0000http://www.oshane.com/wp/?p=72The title of this New York Daily News article is poignantly revealing:

No way police could have saved Jiverly Wong’s 13 Binghamton victims, officials say

Most readers or watchers of the news in this country will know of the tragedy which befell the immigrants taking a citizenship test at a testing center in Binghamton, NY on Friday, April 4, 2009. A man identified as Jiverly Wong entered the building and opened fire with his rifle on complete strangers.

Wong killed himself in the attack, leaving surviving victims of the attack, reporters and others to speculate as to his reasons for committing the murders, but the reasons are largely irrelevant. They probably will not help the victims find healing anyway. May ×™×”×•×” (Yah) bless them in this senselessness.

Clearly but for Wong’s rage and probable insanity, the deceased would still be alive. There was, however, also another substantial factor in the causation of their deaths. New York prevents the purchase of handguns without a license, which can, presuming there are no restrictions placed on an individual license, serve as a concealed permit. Given that most (all?) of the victims of the shootings were immigrants, they were also unlikely to be able to legally own guns in the United States. This means that they were unable to carry a device that, with some training, equalizes the differences between the weak and the strong, the lucid and the crazy, and the good and the evil.

What a tragedy and exposition of the killer’s cowardice. As has already been stated: he did not enter a police station and start firing, because he would have been put down shortly. Instead, he decided to spread his own torment to others who were left defenseless by laws that are supposedly meant to “protect” the citizens of New York.

What restrictionary laws like the ones in New York do is a) not only set a higher bar to ownership, thereby reducing the incentive for people to become familiar with tools they can use to protect themselves, but b) also give rise to a dangerous cultural shift over time. Regular people begin to believe the lie that firearms, because of their inherent unforgiving nature, are something of which to be afraid. Sadly, no one in the building had a firearm on his person that he could have used to kill Wong sooner. Possessing a device with which one can efficiently fire three rounds into the cardiac triangle of an assailant seeking to kill or do grave bodily harm is highly underrated.

Instead, Wong, because it is clear that his chances of obtaining a handgun permit in short order were dubious, purchased a rifle on March 17. Then he waited for the right time to perpetrate the evil and to commit suicide by inner demon.

Opponents of the natural right guaranteed by the Second Amendment might suggest that waiting periods or restrictions be placed on purchasing long guns in addition to handguns. Fortunately, upstate New York has a long history of hunting and culture more disposed to rifle ownership, so this should be politically poisonous. But such restrictions would be a mistake anyway, because people who are willing to do evil will not be bound by law in the first place. The criminal law, at least for laws that are justifiable because they prohibit true wrongs (mala in se, e.g., murder, rape, theft, and so forth), tends to keep good people obedient while acting as a cost-benefit deterrence to only some criminals. Those with the “guilty mind” who see a greater benefit than cost will violate laws anyway for their own nefarious ends. Further, those who are totally depraved — those who internalize no cost to their own hatred — will do evil without reason.

Even if one could eliminate all guns in New York State, it would create greater risk to the citizens of the state, because all of a sudden, the stronger, more evil and bolder criminal-opportunists would have the advantage. Instead of your 55-year-old aunt being able to defend herself with a firearm at ten yards, she would have to face a melee against a criminal with a knife, pipe, chain or his hands, hope that the rape would not be too devastating and hope further that she could live. At least with firearms, the good have a chance.

Not all people are created equally. We do not all have the same opportunity at life, in the face of nature, the government, the market or the evildoer. With at least two of those, the Second Amendment continues to provide the backdrop for our safety and liberty, but we must exercise it.

Neither are all states created equally. I daresay that such a tragedy could not happen in Wyoming. I have joked that I could probably enter nearly any house in San Jose, California (where I used to live), commit some crime (if I were inclined, which I am not!) and probably, at minimum, escape with my life. In Wyoming, the criminal is almost guaranteed to be taking his life into his own hands by trespassing into a man’s home. It is a near given that the criminal will die or be severely injured, most likely by a gun. The same is true out in public. Were a crazed killer to start firing on people in any town in Wyoming, someone will always be nearby with the ability and tool to abort the threat. People here are not afraid of guns, because they recognize that they are tools to be used for a specific purpose; most have a healthy respect for them, and because of that respect and lack of fear, more of us are more likely to carry, increasing our own safety and the safety of our fellow man.

The reason evil men are able to perpetrate and cause harm and get away with at least some of their plans is because they exploit the trust, innocence and goodness that makes societal relationships worthwhile. This harm can always be mitigated by vigilance and tools that equalize the abilities of people who are made physically different. Certainly Wong’s rifle would have been more powerful than a concealed handgun, but at least a handgun would have given many of the thirteen a chance to live.

That police could not have saved the thirteen victims is almost tautological. Unless we were to live in a police state (though we are already tending in that direction), the police are, by definition, reactionary. Anonymous has said, when seconds count, the police are only minutes away. They also do not have the same incentives that an individual has to protect himself, no matter how good the policemen are. Others cannot watch and protect everything remotely at all times for all people. Certainly one should not blame the police for not being able to respond in perfect time. They are neither omnipotent, nor should they be.

Furthermore, the implicit trust that many people have in the government to be able to protect them is madness. These many hapless souls demonstrate the same folly anytime they hope that someone else will ensure their well-being financially, morally or otherwise. No! You are responsible for yourself, and you are also responsible for your own safety. Naturally, it is not your fault if someone harms you, but the only person who really has the incentive and the greatest capability to protect you is you. The police are not omnipotent, but you are potent in your own sphere.

To the extent that government prevents you from protecting yourself against the taking of your life, liberty, property or pursuit of happiness, it is also doing a great evil.

May the Binghamton victims who were trying to make a better way by leaving their native countries, but whose dreams were ended by an earthly nightmare, rest in eternal peace.

]]>http://www.oshane.com/2009/04/police-could-not-have-saved-binghamton-victims/feed/5A Reply to a Comment on Why Socialism Failshttp://www.oshane.com/2009/02/a-reply-to-a-comment-on-why-socialism-fails/
http://www.oshane.com/2009/02/a-reply-to-a-comment-on-why-socialism-fails/#respondSat, 28 Feb 2009 20:58:50 +0000http://www.oshane.com/wp/?p=64My last post was syndicated at BallounPost.com. A commenter left this comment in reply. My response follows.

WWI
World War One was caused by the subset of powerful nations (note: nations, not corporations or businesses or individual shop owners) creating what George Washington called “entangling alliances” such that when the Duke of Sarajevo was assassinated and two nations went to war, the rest of Europe had obligated themselves to fight along side their primary, secondary, tertiary allies. That was the cause of WWI; it is well-known and undisputed.

If one is impliedly asserting that WWI was perpetuated by companies who profited by the war machine, then yes, this happened. War is impossible without production, and either nations own the means of production (communism) or purchase from those who do have the means of production (corporatism).

The question is, with respect to the latter, is this a fault of the free market, that war could enable people to profit off of weaponization? I would argue that it is antithetical to the free market, because war is impossible without government initiation, intervention and involvement. That is to say, because the government defines and causes war and has a national monopoly over its cause, continuation and end, any company willing to do business with the government to profit off of the evil that is war is engaging not in a free market but in corporatism (also known as mercantilism). In fact, the war market wouldn’t exist without government action, so to even consider participation in it a pock against the free market is a reduction to absurdity.

Corporatism/mercantilism are the reliance by businesses on the protection of the government against their own competitors given them an unfair advantage. These companies become the bullies in the schoolyard, precisely because they are all members of a gang of bullies, the leader of which is the biggest, baddest bully in the yard, namely the government. If the little guy attempts to do business in a such a way that contravenes the protectionism of the government, they are either taxed to unprofitability, taxed into a lack of competitiveness, or prosecuted for bogus “laws” that “protect the American/Canadian people.”

WWII
World War Two was caused by the underhanded greedy tactics of the victor governments in WWI. Because they created such harsh reparations for Germany (the loser), and because Germany’s economy was tied to the rules of European central banks (i.e. the government), they eventually encountered such overwhelming inflation that it was easy for a strongman to rise to power to give the Germans hope in a stronger Germany, because they were weakened and humiliated. Along came the blame of the scapegoat, the Jews, and then the world was embroiled in conflict once again.

The reason that Germany had such high inflation was because the central banks were manipulating the DM to ensure profitablity to their constituent creditors, the governments of Europe. That is, they would lend out money to German banks at high rates of interest, which would force the banks to lend out to the German people at higher rates of interest, so that the other European powers would be repaid their reparations. What the German government should have done was reject the central banking scheme set up for them, but alas, people starved.

If the assertion is that companies profited by WWII, then yes, that is true. The same arguments apply. IBM was especially immoral, as it was selling war materiel to both the American and German governments simultaneously. But, again, this is not an example of the free market, but rather an example of corporatism.

Labor Strikes
What the commenter is subtly doing is creating a strawman “free market” by conflating government-intervention in private affairs and then blaming the rest of the free market (wherever that may be) for the ills of a few bad actors who were reliant upon the Bully for help. When the RCMP gunned down picketers, that was quintessentially the company relying on government intervention rather than solving the striking/picketing themselves. That is not the free market, that is crying home to mama for help. When Henry Ford machine gunned protesters, were they attacking and/or destroying his private property, or were they acting peacefully on his property or were they not even on his property at all? If the former, then the workers were in trespass. If the latter two, then he was a murderer. If the latter and he wasn’t prosecuted, then we have yet another example of government assistance, i.e. corporatism, rather than the free market.

The Current Day
The global financial meltdown is being caused by exactly two things, which have nothing to do with corporate greed. It is caused by government control and manipulation of the monetary supply via central banks and the use of fiat currency and fractional reserve banking.

Fiat currency is an ill which the Framers of the American Constitution strictly prohibited when they required that all money be coined in gold or silver. Why? Because once the government is able to issue paper money, detached from anything of intrinsic value, it can manipulate the total money supply by printing or burning it and by moving the interest rate. Why is this bad? This is bad, because the free market isn’t able to correctly value the goods and services it is selling, and because it always encourages price inflation.

Incidentally, WWI was used as an excuse by Professor Woodrow Wilson to allow the creation of a central bank (for the third time in American history) to control and manipulate the monetary supply of this country, which was the root cause of the Great Depression and a root cause of the economic crisis now. Definitely not a matter of free marketeering gone wrong, either. In fact, the USD has been devalued 96% since 1917.

In an attempt to control inflation, central banks (i.e. governments) attempt to tweak the interest rates, usually lowering them, such that more “money” is released into the market, because banks, who receive the currency from bigger banks, in order to remain competitive with each other (banking is the most non-free market industry), loan money out at rates which are lower and lower, making money easier to get for consumers and businesses. When it is easier for them to get money, they devalue what they have.

Or in other words, if I can get $400,000 at a lower interest rate and a monthly repayment of X whereas a year ago I could only take a loan for $300,000 with the same repayment of X, I don’t actually have more purchasing power, because everyone else has the same new purchasing power. When I go to bid on a house, instead of maybe bidding the actual intrinsic value of $300,000, I’ll bid $400,000 to ensure that I get the house, because the other buyers are able to do the same. In effect, I have overvalued the house versus the value with respect to the monetary supply a year ago.

This effect has continued in recent history since 1998 (but really began in 1917) and we have met the end. The entire market has realized that most assets are overvalued and is correcting for it. Such a huge, national / global bubble is impossible without government intervention and manipulation of the monetary supply.

In fact, without central banks, without fiat currencies, there is never such a thing as a national bubble. In a truly free market, bubbles are region or industry-specific, and the market solves their problems quickly and with relatively little pain. I recommend Edward Chancellor’s book, Devil Take the Hindmost: A History of Financial Speculation, because it discusses many historical bubbles (such as the Dutch Tulip Bubble) and how they were caused.

Fractional reserve banking simply exacerbates the problems of fiat currency central banking, because it allows banks to lend out money they don’t actually have. Fractional reserve banking is sanctioned and allowed by the government. That is, if I have $10,000,000 in my vault, I can lend out another $90,000,000 on paper. Simplifying the math, that means that 90% of the wealth in the United States is paper wealth, false wealth and it means the entire system is by definition, insolvent. In a truly free market, banks that lent on a fractional reserve basis might be able to get away with it, but eventually they would get caught by a bank run. Some people would lose their money, which would be tragic, but the market would greatly reward honest banks who lent out only at a 1:1 ratio.

Banks have been failing, because the manipulation of the fiat currency has run its course in terms of its effectiveness. Ben Bernanke, chairman of the Federal Reserve, has all but admitted he does not know what the Fed can do anymore to preserve the economy. This is because the market here in the U.S. has finally come to realize that all assets are overvalued by some large percentage. Because all of our secured transactions are based on collateral which is now devalued, many people (businesses and consumers) are either unable or rationally unwilling to repay their debts at the same rates, because they simply do not have the wealth or revenue to bank it up.

Because banks lend out at a 9:1 ratio, a reduction of loan repayments by even just 11% is catastrophic to their own “solvency” under the FDIC/FED-sanctioned system. That is why banks are failing so rapidly.

The economy is suffering malaise because of large, coordinated government intervention for more than a century, and the market finally realizes there is less value in it than we thought. Of course, the correct “patriotic” solution is not to spend more money to “save” our economy, but let it correct itself. Else, the U.S. and the rest of the world will run headlong into a bleaker future.

]]>http://www.oshane.com/2009/02/a-reply-to-a-comment-on-why-socialism-fails/feed/0Why Socialism Failshttp://www.oshane.com/2009/02/why-socialism-fails/
http://www.oshane.com/2009/02/why-socialism-fails/#commentsSat, 14 Feb 2009 21:30:35 +0000http://www.oshane.com/wp/?p=50Stillborn from the Beginning
A truly free market works precisely because it relies on the self-serving desires of most people acting as a manifold of countervailing forces against all the other self-serving desires in the system. Everyone acting in his own self-interest with a baseline of standards (no theft, no fraud, etc.) ensures that the average wealth per capita is raised. That is, while self-centeredness is ignoble, it is the reality of the human condition, and any economic system which pretends that this can be changed outwardly in, i.e., by external forces (read: government) pressing an ideal onto human lives, only works to create and increase misery, because it is based on fantasy. Communism and its attenuated form, socialism, are noble ideals but are fatally flawed for three major reasons.

First Reason: Perversion of Incentive
Communism and socialism do not just hope for, but rely on the good of mankind in aggregate to work. In fact, apropos to a previous discussion, all political purveyors of socialism/communism are selling hope and the value received is far less than the value paid out by the buyer. Believing in the current goodness of mankind, or rather in the goodness of every individual such as to expect that he will act in the best interest of others is rank madness. Socialism wrecks the ability for people to appropriately measure value for themselves by robbing them of incentive. When the fruits of labor are taken from a person in order to redistribute them in aggregate to everyone else, including him, he resents the theft of his labor but also comes to reliance upon the redistribution.

Jamestown and Plymouth
In Thomas J. DiLorenzo’s book, How Capitalism Saved America, he recounts the story of two early colonies in America, Jamestown and Plymouth. In both, the settlers were required to function in socialism; private property was not allowed and the settlers were required to toil for the “common good.” Within six months of the founding of Jamestown,

all but 38 of the original 104 settlers were dead, most having succumbed to famine. Two years later, the Virginia Company sent 500 more ‘recruits’ to settle in Virginia and within six months, a staggering 440 more were dead by starvation and disease.

He also recounts an example: if 1 out of 20 people refuses to work but can take as needed from the “common wealth,” he will still be able to maintain 95% of his “income” on average while 19 out of 20 people do their jobs. Once too many people realize they can game the system and do less work for more food at the expense of their fellow man, the system fails, and starvation ensues.

Thankfully, in 1611, a governor traveled to America and realized that the incentive structure for the English colonists was the culprit for the previous death and failure. He instituted private property with a small tax on the fruits of their labors. The people could (only) realize the full fruits of their own labor, and the colony began to thrive, because everyone, self-servingly, worked as much as they needed and desired.

Nature’s stochasticity is a far more potent motivator than government’s contrivances.

Socialism cannot possibly work, because it is axiomatically flawed on the notions that people should be selfless and government is the correct actor to ensure selflessness. Thus, in order to effectuate the schemes of the noble cause of “from each according to his ability, to each according to his need,” violent force is justified as a necessity to make men noble. This brings us to the second fatal flaw: socialism relies on force to make it work. By definition, because humans are amoral in aggregate, force is required to effectuate wealth transfer, because rational actors, on the whole, do not voluntarily give away money without value in return.

The Legal Tangent
In fact, our Anglo-Saxon legal system, particularly in the Law of Contracts, at a fundamental level (modulo all the reforms of the modern era), reflects an innate belief that individuals should receive value for value exchanged. The doctrine of consideration, quid pro quo, a bargained-for exchange of something received for something given, mandates that for a contract to be enforceable, it must have the element of consideration. Courts do not like to weigh the relative values of the “something given” for the “something received” because value is entirely relative to the circumstances of individuals in their own situations, and judges do not usually believe their purview is to monitor or value private contracts. An iPhone may be worth $600 to an early adopter, but only $300 to a later adopter or not worth any expense to someone who does not want one. If there is no consideration, the promise is often viewed as a gift, which is always legally revocable unless the promisee reasonably relied on the promise.

Inherent in the doctrine of consideration is that there must be an exchanged that was bargained for. Bargaining, as a legal term of art, does not mean wrangling, dickering or heavy negotiation is required. What it means is that there is an intention of both parties to exchange things of legal value to which both parties assent. By contrast, a contract forced upon one person by another, i.e., using duress, is voidable by the coerced party later.Â Why? Because there was no bargaining. There was an exchange, and it might even be of relatively legal value, but the mere act of force makes the contract voidable by the party who was wronged by the lack of free will. It is not usually discussed in this manner, but duress is really the antithesis of consideration.

Second Reason: Socialism is Violence
Force, of course, is a form of duress, and though the United States now has a long history of employing force to get what it wants from its constituents and other peoples (starting, really, with Alexander Hamilton’s policies of excessive and overwhelming national power), the augmentation of the use of force to transfer wealth is still total anathema to our natural law notions in Anglo-Saxon society of what a fair and right contract is. We should all recognize that force to take wealth away from another person, while justified at a governmental level, is still theft on an individual level. So, while socialism might be noble in its thrust to ensure the welfare of other people, it is pragmatically reliant on the evil of violence to make it work.

Contrast the doctrine of consideration, required in Anglo-Saxon legal systems, with contract laws in civil countries, which do not necessarily recognize the need for consideration. It is not surprising, therefore, that in cultures without a long history honoring the notion of bargain to ensure the satisfaction of parties exchanging value, communism and socialism took root faster, even with our early forays into forced socialism. See Jamestown, supra. Because these political theories are fundamentally based on oppressive force–in contrast to force being used in the name of liberty here, even though liberty does not require it–the doctrine of consideration as an innate part of our culture has been a silent bulwark to such force. Unfortunately, the Pacific and Atlantic oceans seem to not be wide enough . . .

Ironically, the Jamestown/Plymouth colonies are poignant examples from our own history of why a modern socialist government relies on force to effect an economy. The perversion of incentives leading to low production are evident to even the most mindless pro-government drone, which is why modern governments employ force to ensure the “health” of the socialist state.

Of course, labor at gunpoint does not comprise a worthwhile society; it is a Prison.

Vitiating the Counterexample
Naive proponents of socialism correctly point out that the apostolic community of believers in Yeshua (“Jesus”) was the first successful manifestation of communism. I suppose the inherent argument is that if it was good enough for Jesus . . .

The surprisingly overlooked flaw in this counterexample is that the association of believers was entirely voluntary, because at no time did Yeshua command his followers to preach the good news to convert by force. I believe it is a hallmark of Good for people to voluntarily associate and combine their assets and incomes in a manner to synergetically benefit one another. But it is the voluntariness (the “cheerfulness” in scriptural semantics) that makes it noble and good, not the sharing by itself.

Let each one give as he purposes in his heart, not of grief [grudgingly] or of necessity [compulsion], for Elohim loves a joyous [cheerful] giver.

2d Corinthians 9:7 (The Scriptures, Inst. for Scripture Research 1998)

Third Reason: The Corollary of Correct Valuation
Correct valuation of labor in the form of goods and services can only be appropriately calculated by the parties to their own contract. This is definitely a corollary to the observation that incentives remain healthy when individuals have control over their own labor. Only you know what you really need. Only I know what I really need. If we are friends, we may be able to effectively negotiate on behalf of one another and trade for value in a way that satisfies the other person. Of course, we run the risk of not doing so. Why? It is as simple as the fact that we cannot read one another’s minds and perfectly understand one another’s goals.

Multiply that by the billions of transactions that occur daily. Is it even fathomable that a central planner (especially a bureaucratic committee prone to inaction and inefficiency, detached from the reality of life and the harshness of nature) can correctly value the effectuate transactions between hundreds of millions of people? No, such a proposition is patently absurd.

The market is not a controllable system: it is simply the sum-greater-that-its-parts of all value exchanges between the actors in a population. It is more organic than technical, and it is only predictable on an individual level where we can spend time imperfectly analyzing how actors might negotiate and trade value. If you know all about me, you, again, can probably predict how I would want to transact business and for how much money. Of course, that requires time, patience and astute observation to get it right.

Thought Experiment
Let’s assume a central planning committee has the resources to observe each person constantly and to get to a point where it can accurately predict the appropriate value exchange for each person. Let’s assume this observational analysis only takes one minute one time for each person in the country. Let’s also assume each person enters into five transactions daily. For 327,000,000 people, it would require 3,111 man-years to accomplish the analysis to ensure the central planner could have the information necessary to direct the economy. The assumptions for the experiment are prima facie conservative in favor of the theory socialism, of course, and the result is, nonetheless, literally incredible.

One alternative is that the central planning committee simply fails to do what it believes its job is. It is doomed to failure, because “getting it right,” i.e., ensuring maximum wealth in a centrally controlled manner for each person, is impossible. Because no one appropriately small subset of people can correctly evaluate economic incentives for hundreds of millions of people, the wealth transfer is guaranteed to be lopsided and ineffectual. The plight of the Soviet, Chinese, Cuban and several southeast Asian peoples from the twentieth century are evidence of this.

Conclusion
Socialism promotes misery, starvation, violence and murder. The worst that can be said for capitalism is that it allows for poverty due to nature and poverty due to laziness, both of which decrease over time in a free market. All examples of non-voluntary socialism in their stated quest to eliminate poverty only increase it.

The true alternative is that we can simply allow for each person to transact for himself freely. Liberty is the hallmark of a workable economic system. As flawed as capitalism is for relying on man’s self-centered nature, it is paradoxically this reason that makes capitalism pragmatically perfect.

The Market Analysis
Charles Revson of Revlon stated, “In the factory we make cosmetics, in the store we sell hope.”Â See endnote Î±.

Clearly, as in other industries, a primary thrust of the business owner in the wedding industry is to sell hope to the couple.Â This sentiment of salespeople everywhere is particularly powerful in industries where hope has been interwoven with tradition over centuries.Â Specifically, what the couple hopes for on their wedding day is often preconceived, because traditions surrounding marriage are so old that they have become standards nearly unquestionable to the conscious mind.Â A couple’s hope, therefore, is often a manifestation of the desire that those particular traditions will be fulfilled in a perfect way.Â For example, how often does the bride in our culture want beforehand to wear blue jeans and a blouse?Â Not only is she looking for a white wedding dress (the tradition), she aspires to find the perfect, most fitting, unique white dress which will cause all of her loved ones to awe in her beauty for the day (the hope).

Moreover, because marriage is so important and fundamental to the health of a family, which is the atomic unit of society, the couple already has a built-in hope that the wedding and celebration will be excellent as a predicate for an excellent marriage.Â This is not necessarily a good proxy, but the hope is potent, because the wedding and celebration are precisely meant to be metaphors for the marriage itself.

With such hope already present as couples shop for services to plan their weddings, it does not take much to convince them of the high value of the enterprise of the wedding day.Â Further, it takes only a little bit more to convince the couple that this high value is appropriately represented by the seller’s high prices.Â Candidly, there is nothing wrong if both parties believe their contract represents a correct valuation to both of them.Â But, hope certainly commands a premium on the services if not for the services themselves, because hope is a primary predicate for demand.

Another way to summarize this is to think of wedding planning as event planning for the most important life event that most people go through.Â Because of the importance the buyers attach to the event, the seller commands a premium in exchange for the implicit (sometimes explicit) consideration that the wedding vendor will provide services and products with the utmost standard of care and high orienation to detail.Â The catering will be ordered, accommodating to all food-allergies and quiet.Â The flowers will be a certain species of Bird of Paradise and appropriate filler flowers of complementary color.Â So on and so forth.

From the seller’s perspective, while some of the value is demand (hope) driven, some of the value is also a premium for the compensation of risk inherent in the hope.Â If something goes wrong, there could be hell to pay to the couple, but if everything goes right the worrying about everything going right and the extra labor required to ensure a successful event requires such a premium.

Of course, we also tend to highly value beauty, design and prospect (“the view” of the mountains or ocean, etc).Â Wedding venues, in order to serve as an appropriate metaphor for the aspirations of the couple and the couple’s loved ones about their marriage, often incorporate exquisite views or thoughtfully designed beauty.Â If not, given the hope couples usually have for the representational effects of their wedding, they may be choosing a venue for convenience, which can also command a higher premium.Â In fact, this premium is exacerbated or increased (vis-a-vis buyer or seller), especially because real property, land, is unique and not fungible (one thing of the same type is as good as another).Â A ton of scrap metal is the same as another ton of scrap metal.Â A wedding venue is not the same as any other.

Moreover, the market pricing signals for wedding planning are not as smooth and predictable as for other services or commodities.Â People do not get married often enough to be able to iteratively judge value.Â The lack of the number of signficant digits in pricing is indicative of this.Â A venue might cost $5,000 (or the moral equivalent, $4,999), but were demand in society more pervasive and frequent, the market might make the pricing much more precise, e.g., $3,826.23.Â Here, the risk the vendor is requiring for lack of pricing signals is $5,000 – $3,826.23.Â More complexly, wedding vendors actually still do have more signals available to them (many customers constantly) than the buyer has (pricing from only several competing vendors one or a few times in her life), which means they will be able to extract a premium for buyer ignorance as well.Â Of course, little of this is usually conscious to the seller or buyer, but is reflected in normal principles of human action, because pricing is often done intuitively until there are many many more pricing signals with which buyers and sellers interpolate.

The “racket”, thus, is the buyer’sÂ indignation arising from their intuitions that the vendors are extracting a premium based on their hope and ignorance.Â Buyers usually concede to the rationality of premium-for-risk, which is why high cancellation penalties are usually not argued.Â But, because the hope the buyer-couple has with respect to their marriage translates into expectations about their wedding, they easily conflate the two and can irrationally but intuitively respond to the seller’s premiums as profiting on their marriage.Â No, the seller is rightfully profiting from the wedding, but it is so easy to mix the two up that it frustrates many couples looking to wed within a budget.

The market is amoral, but at least in a theoretically free market, the buyers have the choice to walk away from the deal before the contract is signed if they feel the value is asymmetric.Â And with respect to the market only (as opposed to other non-economic considerations about weddings in the next upcoming post), frustration with pricing is an asymmetric internalization of value.Â The buyer can be frustrated, “You want me to pay $35,000 for 40 seats in a boat house?Â No.” and the seller can be frustrated, “You want me to provide my oceanview beachside mansion in Monterey for $500?Â No.”Â In both cases, the frustration is legitimate with respect to the individuals who are negotiating, because they perceive the value received does not equate to the value given in consideration.

Thought experiment: Couple finds the perfect wedding venue for $20,000 but only wants to spend $5,000. They may express frustration at the pricing for a value they just don’t perceive and chalk it up to the wedding racket.Â Conversely, let’s say the couple’s demand-pricing is really elastic, and they are willing to pay $20,000 for a venue the vendor knows is usually worth $5,000.Â He’ll be thrilled!Â On the other hand, if Couple finds the perfect wedding venue but because of very low demand might be able to get it for $1,000 where its previous going rate was $20,000, the seller might resent the fact that they are “getting a steal while the same Couple in the first instance will stop complaining about “the wedding racket” and take the deal.

In a free market, again amoral (and justly so), resentments and thrills are always based on asymmetries of perceived value exacerbated by the underlying or circumstantial hopes that the buyers and sellers bring to the table.

On February 2, I voted against Eric Holder to be the Attorney General.Â The top lawyer of our nation should not have an agenda against the Second Amendment and must be able to make difficult legal decisions without falling to political pressure.Â Unfortunately, a majority of my colleagues were willing to support this nomination.Â The Senate voted 75-21 to confirm Mr. Holder.Â

I have been and will continue to be a defender of the right of the people to keep and bear arms.Â I am strongly opposed to any limitations on law-abiding gun owners.Â While no one condones the purchase and use of guns by felons or high-risk individuals in committing a crime, we cannot improperly hamper the Second Amendment Rights of those who obey our laws.Â I believe that we should find out which current gun laws are working to keep the guns out of the hands of criminal, and then make sure that those weapons are enforced.

Thank you for contacting me with your thoughts.Â I rely on the ideas and suggestions from the people of Wyoming.

Complete economic failure of a prison system for which humane treatment of prisoners is a requirement would probably entail starvation, suicides, rising death rates due to communicable disease contagion and riots. California’s system is exhibiting three of those characteristics now.

The situation is instructive on several levels.

The Irony

First, there is a lesson in irony here, because although the breaking of federal law implies incarceration in a federal prison, most state drug laws are modeled on federal drug law, i.e. everything comprising the failed, unnecessary and immoral War on Drugs. This is, of course, modulo the need for an expansive Commerce Clause which the federal government games on a weekly basis to interfere with and subsume what should be state matters. The irony appears where federal, not state judges, are telling California that its prison population is too large (dense?) for the care the state is able to financially provide its prisoners and where approximately two-thirds of them (as in all American jurisdictions) are incarcerated for drug crimes. Most of those crimes would not exist without the strongarm tactics of the federal government (by having made money-in-exchange-for-compliance-in-passing-law offers the states just could not refuse over the last decades), and therefore many of the prisoners would not be imprisoned, meaning the situation would not exist in the first place.

That is to say, the incarceration of those prisoners was unnecessary to begin with.

The more removed a government is from the local needs and desires of a people (the federal government being maximally removed from all local affairs with respect to state or municipal governments, save Washington, D.C.), the less necessary and more invasive those laws are, because they are applied broadly and with less consideration for the factual circumstances inherent in the lives of the populace in a smaller local body. They are also more expensive, because they require policing of a larger population with an exponentially greater number of interactions between people giving rise to situations exploited to foment and enforce law.

The Economics of the Imposition and Enforcement of Law

Secondly, and to that point, in a vast country such as ours where taxes are levied for many of us through our paychecks in a manner that keeps the magnitude of the money taken invisible, it is easy to forget that the legislation, enforcement and adjudication of those laws costs money. The amount currently required at the federal level for all activities (since the sum total of activities is equivalent to to the total of all legislation, enforcement and adjudication of law) far exceeds the annual budget.

Without respect to any specific law or set of laws, it should be obvious by inspection that the decrease of the number and complexity of the laws made, enforced and adjudicated would necessarily lead to a decrease in the amount of money required to do those actions.

The viability of imprisonment, as a function of enforcement and adjudication, thus, is dependent on the money that can be successfully levied for the construction and maintenance of prisons, the payment for guards and the costs associated with preserving the lives of the inmates. However, these costs are proportional to the number of inmates who the State incarcerates, which is a number itself proportional to the number of laws created, enforced and adjudicated.

The Penal System as a Leading Indicator of State Financial Illness

California is functionally bankrupt, and though there are many real life examples of how this is bearing out, the prisons are a model example. There are 157,000 inmates currently, which is twice the standardized capacity for the California Penal system, and federal judges are looking to reduce that number to approximately 100,000.

Why? Because the lack of funds to provide for “adequate” living space, food and other regulated necessities is causing an increase in death and illness. That is to say, the California Penal system is failing, because it is unaffordable.

It is unaffordable, because there are too many laws to be adequately funded by the citizens of California and because at least some of the laws exact a higher cost to the taxpayers than they provide in benefit.

Lest one argue that the tax system has not been made robust enough to support the administration of all laws in California, of which the Penal system is a leading indicator of health, California exacts high income taxes (7% or more), higher capital gains taxes (9.3%), relatively high property taxes (1%+) and a high sales tax (7.25%-8.75%) against its 33.8 million citizens. Never mind the taxes levied against corporations, vehicle licensing, etc. If extracting more taxes were an answer, California should be successful.

The reasonable conclusion is that too many laws can grow to be unaffordable. Not only does the imposition of more law in general reduce freedom directly, it also indirectly attenuates freedom by requiring the exaction of taxes (a limit on economic freedom) to pay for the enforcement of the laws.

California’s laws have become unaffordable and the State should cut out of its budget those which generate the smallest benefit for the cost (which is most of them).

The United States also falls into this category, because the inability to maintain a budget demonstrates that the number of laws currently enforced and adjudicated is too great for the population to affordably bear, the native immorality of most of them notwithstanding.

They are immoral, because they abrogate the freedoms of individuals to ingest and imbibe the things that they wish, as stupid or unwise as taking those drugs may be. The government overreaches when it legislates and enforces laws to prevent people from making poor choices that do physical harm to only themselves.

Further, because the government is the worst allocator of economic and moral resources, i.e the sum of the individuals comprising government are synergetically more wasteful and corrupt together than they are individually, its policies and enforcement are logarithmically more wrong the more people who are affected or “covered” by the laws in force. Moreover, the application of the laws are largely due to an incomplete understanding of the subject matter and are corrupted by lobbying.

As an example, caffeine, a legal and necessary drug for much of the population to function, would instantly kill a person if he were able to powderize and ingest the same quantity as some people do when they take cocaine. Yet, caffeine is invisibly and minimally indirectly regulated by the FDA whereas the DEA will use automatic weapons to secure a cache of cocaine.

Oxycontin, the drug mimicking the hormone that the hypothalmus orders to be released during orgasm, is a prescribed medication in hospitals, and is vastly more addictive than other drugs (as evidenced by society’s new discovery of oxycontin abuse) for obvious reasons. But marijuana, which patients have used to some benefit of relief, cannot even be legally prescribed according to federal law.

So what drives the illegality of certain drugs over others? Tradition, the inability of the federal system to admit wrong when it has quixotically pursued an unattainable goal, lobbying and fear.

I am not passing opinionated judgment on the morality of use of a particular drug at this time, but even if I did, it is far more immoral for the government to decide what is okay for you to ingest, precisely because the government is not able to effectively allocate resources or ensure a consistent morality to its own or your own actions. Your choice to use drugs, as improvident or banal as it may be, is for you to decide with respect to your wishes, predilections, your family’s desires and your relationship with the Almighty.

Drug laws are unnecessary, because though addiction to drugs does lead people to do drastic things to feed their addictions, criminal and tort law was as (in)sufficient beforehand without the specific drug laws to deter violent and immoral acts by drug addicts to gain what they perceive they need as it is currently.

Possession laws do not prevent drug users from committing violent crime. Criminal law and moral upbringing prevent drug users from committing violent crime. Possession laws simply give people disincentive to possess drugs. They are unnecessary, because criminal assault, battery, murder, and larceny laws (and their attendant attempt counterparts) suffice as do their analogous common law torts.

Meanwhile, drug laws are dangerous, because the artificial degradation of supply always ensures that both price and risk for obtaining the commodity increase. This occurs in what is commonly known as a black market. Black markets ensure violence, and other evil behavior between the parties in the market, precisely because of the risk of punishment by the so-called legitimate government who has the power to enforce its laws with a nearly limitless budget and powerlust. In order to avoid being caught and sentenced for a lengthy term for selling drugs, a dealer may kill an informant or a counterparty and risk a murder charge in the hopes that he will not get caught.

Take the black market away by not making drug use, sale or purchase illegal, and it will instantaneously remove the incentive for intra-black-market crime. The price of drugs will also drop precipitously, because supply and demand will not be artificially constrained, and the attendant ills caused by the interaction of addiction and artificially high prices will be greatly lessened. Who needs to rob someone else for a coke hit when coke is 1 cent per ounce?

Drug laws not just exacerbate but cause the ills caused by the risk inherent in a black market. They also are a but-for causation of the increase in violent tendencies of people who were otherwise peaceful but foolish when they are sent to prison and are forced to adapt to the facility’s Lord of the Flies culture of violence.

]]>http://www.oshane.com/2009/02/the-skullduggery-of-drug-laws/feed/0Statists Anonymoushttp://www.oshane.com/2009/02/statists-anonymous/
http://www.oshane.com/2009/02/statists-anonymous/#commentsFri, 06 Feb 2009 09:26:00 +0000http://oshane.com/wp/?p=8Insanity :: Stealing more money from one’s subjects in order to spend more on government programs than was spent last time while hoping for a different result.
]]>http://www.oshane.com/2009/02/statists-anonymous/feed/2Let’s Not Get Politicalhttp://www.oshane.com/2009/02/lets-not-get-political/
http://www.oshane.com/2009/02/lets-not-get-political/#commentsThu, 05 Feb 2009 09:01:00 +0000http://oshane.com/wp/?p=7Background (long)

The Wyoming Constitution, replicated in Title 97 of the state statutes provides,

The university shall be equally open to students of both sexes, irrespective of race or color; and, in order that the instruction furnished may be as nearly free as possible, any amount in addition to the income from its grants of lands and other sources above mentioned, necessary to its support and maintenance in a condition of full efficiency shall be raised by taxation or otherwise, under provisions of the legislature.

Wyo. Stat. Â§ 97-7-016 (2007) (emphasis added).

Here at the University of Wyoming, the trustees decided several years ago to interpret this provision as guaranteeing tuition “as free as possible” as a provision primarily for resident undergraduates and secondarily for graduate students and non-residents. Before, tuition had been generally adjusted upward at a rate of 3% per annum, but after this decision, the trustees, given that approximately 52% of the student population are resident undergraduates, decided to subsidize the necessary increase in tuition for resident undergraduates by doubling the increase for graduate students and non-residents.

Thus, apparently before I arrived to the law school, my tuition had been raised by 6% from the previous year (excluding a separate allocable increase for the law school itself). Next year it is slated to be 5% and my third year is unknown. Meanwhile, resident undergraduates have been seeing no increases.

Last year, several law students went to the vice president for student affairs and other entities to appeal, post hoc, the increases as unfair, because they favored resident undergraduates at the literal expense of the law students and the rest of our graduate and/or non-resident compatriots. (This year, the group of law students has begun to enter the process in a more timely fashion and in future years expects to have a more significant impact on the way tuition increases are decided. Side note: the pharmacy students expressed similar frustrations, but were all too happy to let the law students argue for them).

Objectively, graduate, professional and non-resident students still have (one of?) the best value(s) for their education in the country. As a transplant from the West Coast, I am thrilled at how inexpensive it is to attend law school and still receive education from excellent professors here in Wyoming. This issue does not raise my ire, because a 6% increase, though non-uniform, is still predicated on and limited by the inexpense of the previous year’s base tuition. Disclaimer: I will be making application for residency, given our full and complete move to Wyoming, but as a professional student, I will still face the same higher percentage increases, just on a lower base.

On the other hand, as a quasi-outsider, I found the discussion very interesting, and though it does not pragmatically upset me, I do logically agree that a system of tuition increases tiered to favor one class of people over another is manifestly unfair, precisely (and definitively) because it is inequitable.

This discussion arose two days ago in a Town Hall meeting held at the law school, and I was privy to a smaller post-meeting discussion in the “break room,” where several students were lamenting the idea that the State Constitution’s equality-in-admission clause and the nearly-free-tuition clause imply that tuition increases should be done uniformly and that the trustee’s have chosen to favor resident undergraduates.

These students are native Wyomingites, so leaving the issue of whether Wyoming should favor residents over non-residents (even as the Equality State) aside, I empathize with their frustration that as professional students, they are expected to bear a greater load of the overall cost of the university than undergraduates, especially when the Wyoming Constitution provides that higher education should be as free as possible.

The Issue

As I was buying a 7-UP, I interjected with something along the lines of, “Tiering costs to favor one class of people over another is unfair. That’s exactly why progressive income taxation is manifestly unfair” (never mind that income taxation, tiering or no, is a form of indentured servitude [read: slavery]).

The student who was speaking immediately responded, “While I am probably inclined to agree with you, let’s not make this discussion political.”

The discussion wasn’t very formal given that we were all running to class anyway and it was among friends and peers, so it is not as if I was derailing the purpose of a meeting by bringing up a larger point.

I found it bizarre that he wanted to cut off my commentary as “political” presumably because it involved taxation. This prompted me to think, given that my analogy was perfectly apt (costs imposed upon a large number of people for a public service with tiering of those costs created to favor one group of people over another), why would his first response be to avoid discussion because my point was “political”?

Agreed: my point was political, but couldn’t one consider tuition increases imposed oligarchically and unilaterally for a group of people (students) reliant upon ongoing (educational) services where switching costs are high to be a political question? Why did he implicitly believe that the question of tuition increase was not political?

Is it a matter of locality? What is it about local issues that cause people to rally around their own just causes to combat perceived or real injustice where national issues are to be avoided as “political”?

This is why civic republicans in the 1770s-1790s believed that the purpose of government, which was to effect the common good by way of virtue, was best effected at the local level with strong, frequent communal interaction. It is true: people who care deeply about rights and wrongs are more apt to try to mend problems locally.

Or is the dichotomy between political and non-political a derivative matter of choice? Government, almost by definition, is a method by which one set of people impose their will upon a larger set of people. Is taxation a “political” question because we have little pragmatic individual choice in the matter once tax rates have been decided whereas tuition increases, though inconvenient, are not “political” because do not prevent a student from switching, i.e. matriculating elsewhere?

(Switching out of the corrupt and overbearing U.S. tax system is nearly impossible).

Again, my point was political, but not just so. I really meant, as I am wont to do, to make a pedagogical point to my fellow students, which was, “Do you understand that the frustration you feel about inequitable tuition increases can and should be applied and augmented when you think about how income taxes are administered in this country?”

Why should the non-residents and graduate students subsidize the resident undergraduates? Thought experiment: imagine many years into the future where tuition increases for non-residents and graduate students had compounded so much that the resident undergraduates were paying about the same amount (~$94/credit hour), but a resident professional student was paying the same amount for law school as law students at higher ranked private schools in the region. What would happen? We would see an exflux of students to go to school elsewhere. The unfairness would have reached an inflection point. This is basic human action, i.e. basic economics. People gravitate toward incentives and move away from disincentives.

Of course, the trustees will never let that happen, because they realize that while a certain amount of unfairness is good for the effecting their political purposes, too much will suffocate the incentive of the students who are subsidizing the preferred class of students. The University of Wyoming trustees are also not predisposed to increasing costs at random and though we may think they are wrong in their interpretation of the Wyoming Constitution, the scenario in the thought experiment will also never occur, because there is no rampant spending outside of the purview of the university.

Contrast this to the federal government, which, with each passing year seems to expose us to more and more obligations for which we have no desire and which have nearly nothing to do with living as Americans. The incentive of the Government is the same, but far more insidious, because its perception of its own scope is limited only as far as the east is from the west. A certain amount of unfairness toward their subjects is good for effecting the myriad and conflicting political purposes of our rulers in Washington. Again, too much will eventually suffocate the incentive of the wealthy and middle class who are subsidizing the poor more and more. In fact, progressive taxation and secret-taxation-by-inflation (the value of the dollar goes down and so do your dollar-denominated investments) will eventually turn the more and more of the middle class to poor. But that may be acceptable to the Government as it attempts to linearly program the maximum amount of power and wealth it can accrue before the system bursts. How long can it squeeze the wealth-makers and job-providers before the system collapses on itself?

Meanwhile, it may be simply easier for me to ignore such intractable politics and simply figure out how I can avoid paying an increase of $1000 next year as a non-resident law student.

I am a law student here in Laramie and I am writing to ask you to vote “no” on the confirmation of Eric Holder for Attorney General. Pardon me if your position is the same as Senator Barrasso’s, in which case this email is moot.

Eric Holder’s reputation as a categorical enemy of the Second Amendment indicates that he is morally disqualified to be the Attorney General of the United States. He has attempted, serving as a public official, to attenuate and create obstacles to the American’s right to own firearms, which is representative of the right to defend oneself and one’s family and is the continuing bulwark of our liberty against the elements of tyranny.

His views on firearms and the possession of them do not comport with those of our society, and certainly do not comport with the views of the average Wyomingite. Meanwhile, many [of] his actions as Deputy Attorney General were ethically dubious; the United States needs an Attorney General above ethical reproach.

I traveled from Denver to San Jose yesterday evening. Of course, that meant going through the gauntlet of inanity controlled by the TSA. Today I saw a TSAgent who still had “a light” in his eyes. He must have been new, because his joy and creativity were not squelched out of him; he was still smiling. Contrast him to the dude behind the metal detector who was using his “authoritah” voice to admonish us to remember the commandments for efficient travel and correct security checkpoint protocol.

Anyway, the TSAgent-who-could-yet-be-saved was checking IDs; I knew there was still hope for him, because he was doing it as mindlessly and quickly as possible. That is, he didn’t seem to take the exercise too seriously and was keeping himself moving quickly for fear of utter boredom. He looked at each ID, compared it to the boarding pass and quickly stamped the document.

When I went up to him, I noticed that the ultraviolet light used to determine whether my state’s driver’s license is actually a real license per the sanction of the federal government (i.e., whether the dokumenten were authentic vis-a-vis the Transportsicherheitverwaltung uber-diktaten) was shining on his arm. He was letting the black-light cast the narrow beam onto his forearm while he mindlessly passed everyone through the checkpoint. After he stamped my boarding pass, I said, “Aren’t you worried about getting skin cancer?”

I expected a confused look for breaking the unspoken rule that passengers should not say anything oblique or meaningful, but he knew exactly what I was referring to. He laughed agreeably, and shoved the light (swiveling on its joint) away from him and continued to stamp people through. I realized there was hope for him when he began to do the opposite of what his direktors probably wanted him to do: not use the light to authenticate every goddam license.

Hopefully he quits when he realizes he’s better than the TSA. Or it will be a sad day when his soul dies.

]]>http://www.oshane.com/2009/01/tsagent-with-a-little-light-inside/feed/1Jurisdiction In Personam, In Remhttp://www.oshane.com/2009/01/jurisdiction-in-personam-in-rem/
http://www.oshane.com/2009/01/jurisdiction-in-personam-in-rem/#commentsSat, 24 Jan 2009 10:16:00 +0000http://oshane.com/wp/?p=4Why am I blogging?Friends and colleagues have, from time to time, asked me to blog generally and about specific ideas. There is never a dearth of intriguing things to talk about. I had been avoiding starting, because I had no presentational design worked out, and design matters to me; I like things to be perfect before I ‘release’ them, but sometimes starting and iterating improvement as one goes along is the better way. I also didn’t want to presume my ideas were important or interesting to others, but I realized:

a) the cost of publication (labor plus other costs tending toward zero) is relatively low compared to the potential benefit that might be gained: i) by me in the continuing practice of organizing my thoughts, ii) by you if you’re edified, iii) by me and “you” in a mutually pedagogical way through commentary and the feedback loop;

b) Google Analytics will help me infer whether this is a meaningful exercise;

c) Meaningfulness cannot be tested if a light is hidden under a bushel;

d) Chaotic and arbitrary free expression is highly overrated. Thoughtful public free expression is underrated. It is my American birthright to do either, but in practicing the latter, I believe I hone the skill of uplifting and defending the rights of others, especially in the face of a legion of writers who seek to limit freedom under the guise of promoting it.

My hope, thus, is that this is mutually edifying. This principle will be the lodestar of my blog.

What will I talk about?
The following is a non-comprehensive first-order list of what I may write about: